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INTERNATIONAL   LAW  AND    DIPLOMACY 

OF  THE 

RUSSO-JAPANESE  WAR 


THE 

INTERNATIONAL  LAW 
AND  DIPLOMACY 


OF  THE 


RUSSO-JAPANESE  WAR 


By 
AMOS  S.  HERSHEY,  Ph.D. 

PROFESSOR  OF  POLITICAL  SCIENCE   AND   INTERNATIONAL  LAW 
IN   INDIANA  UNIVERSITY 


\^_y^-*^    >J>^--\,y^.^^^JCy%.^1.y^ 


L^^^-»>UL 


9^ 


IQeto  porfe 

THE  MACMILLAN  COMPANY 

LONDON:  MACMILLAN  ^  CO.,  Ltd. 

1906 

All  righti  reser-ved 


Copyright,  1906 
By  AMOS  S.  HERSHEY 


OuiLliWWp 


THE  HOLLENBECK   PRESS 
INDIANAPOLIS,    INDIANA 


To  O.  F.  H. 

THE  COMRADE  OF  MY  YOUTH 


PREFACE 

In  view  of  the  importance  of  the  issues  involved  and 
the  general  interest  manifested  in  the  subject,  perhaps  no 
apology  is  needed  for  the  appearance  of  a  volume  which 
aims  to  be  a  fairly  complete  history,  from  the  point  of 
view  of  International  Law  and  Diplomacy,  of  the  Russo- 
Japanese  War. 

This  great  conflict  not  only  aided  in  the  solution  of 
many  disputed  questions  in  International  Law,  but  it  also 
gave  rise  to  a  number  of  new  precedents  and  controversies 
which  will  materially  affect  the  future  conduct  of  interna- 
tional affairs.  It  furnished  a  particularly  interesting  and 
important  field  for  the  application  of  those  principles  gov- 
erning the  rights  and  duties  of  neutrals,  which  are  of  com- 
paratively recent  origin,  and  to  the  growth  of  which  the 
United  States  has  largely  contributed.  Certain  of  the 
rules  or  customs  based  upon  these  principles  are  still  in 
process  of  formation,  or  have  not  as  yet  been  fully  estab- 
lished by  the  general  practice  of  nations ;  others  are  per- 
haps no  longer  observed,  and  are,  therefore,  of  doubtful  or 
waning  validity. 

International  Law  is  in  a  state  of  constant  growth  and 
decay.  Its  rules  are  the  result  of  international  practice 
which,  although  based  upon  fundamental  principles,  vary  in 
different  times  and  under  different  circumstances.  Tlie 
usages  observed  during  the  Russo-Japanese  War  may  serve 
to  strengthen  such  customs  as  are  in  a  stage  of  imperfect  de- 
velopment, or  to  weaken  still  further  such  as  are  in  a  state 
of  decay.  In  any  case,  they  are  an  index  to  the  present  con- 
dition of  international  morality. 


VIU  PREFACE 

It  is  hoped  that  this  treatment  of  the  subject  may  have 
interest  for  the  general  reader  as  well  as  for  the  specialist, 
and  that  it  may  be  regarded  as  a  contribution  to  history  as 
well  as  to  International  Law.  To  this  end  the  material  has 
been  cast,  wherever  practicable,  in  narrative  form.  Each 
chapter,  though  a  separate  study,  is  strictly  subordinated 
to  the  proportions  of  the  work  as  a  whole. 

The  present  volume  has  grown  out  of  a  series  of  eight 
articles  contributed  to  The  Green  Bag,  from  May  to  De- 
cember, inclusive,  1904.  These  have,  however,  been  re- 
cast and  enlarged,  and  a  number  of  chapters,  entirely  new, 
have  been  added.  Chapter  12  is  (with  slight  changes) 
identical  with  a  paper  which  may  be  found  in  Vol.  II  of  the 
Proceedings  of  the  American  Political  Science  Association 

(1905)- 

The  author  acknowledges  his  indebtedness  to  the  many 
publicists  whose  works  have  been  consulted  in  the  prepara- 
tion of  this  volume.  The  extent  of  his  obligations  may  be 
seen  in  the  numerous  footnotes.  To  these  footnotes  points 
of  minor  interest  and  importance  have  been  relegated,  to- 
gether with  references  to  documents  and  authorities.  They 
contain  fairly  complete  bibliographies  bearing  on  important 
principles  and  controversies,  and  it  may  be  noted  that  these 
bibliographies  include  references  to  Continental  as  well  as 
to  Anglo-Saxon  authorities. 

Two  excellent  and  important  works,  which  appeared  dur- 
ing the  course  of  the  war,  have  been  of  such  exceptional 
service  that  special  mention  should  here  be  made  of  them. 
These  are  the  "Russo-Japanese  Conflict,"  by  K.  Asakawa, 
and  "War  and  Neutrality  in  the  Far  East,"  by  T.  J.  Law- 
rence. 

In  conclusion,  the  author  wishes  to  make  public  acknowl- 


PREFACE  ix 

edgment  of  his  great  indebtedness  to  his  friend  and  col- 
league, Professor  Samuel  Bannister  Harding,  whose  advice 
and  assistance  in  the  preparation  of  this  volume  have  been 
invaluable ;  and  to  Dr.  Dudley  Odell  McGovney,  who  kindly 
read  the  manuscript  and  offered  a  number  of  helpful  sug- 
gestions. 

Bloomington,  Indiana,  Nov.  17,  1906. 


CONTENTS 


PAGB 

Preface    vii 

INTRODUCTORY 
Causes  of  the  War i 

CHAPTER  I 

The  Outbreak  of  War  and  the  Alleged  Violation  of  Korean 
Neutrality    62 

CHAPTER  H 

The  Conduct  of  the  United  States  in  Respect  to  its  Neutral 
Rights  and  Duties 78 

CHAPTER  HI 

The  Construction,  Sale,  and  Exportation  by  Neutrals  of  War- 
ships, Submarine  Boats,  and  other  Vessels  Intended  for 
Belligerent  Service 91 

CHAPTER  IV 

War    Correspondents,    Wireless    Telegraphy,    and    Submarine 

Mines    115 ' 

CHAPTER  V 

Russian  Seizures  of  Neutral  Merchantmen — the  Right  of 
Visit  and  Search  and  the  Alleged  Right  of  Sinking  Neu- 
tral Prizes 136 

CHAPTER  VI 
Questions  Relating  to  Contraband  of  War 160 

CHAPTER  VII 

The  Voyage  of  the  Baltic  Fleet,  and  the  Rights  and  Privi- 
leges of  Belligerent  Armed  Vessels  in  Neutral  Ports  and 
Waters   188 


Xll  CONTENTS 

CHAPTER  VIII 

PAGE 

The  North  Sea  Incident 217 

CHAPTER  IX 
The  Hay  Note  and  Chinese  Neutrality 246 

CHAPTER  X 
Russian  and  Japanese  Rules  of  Warfare 269 

CHAPTER  XI 
The  Relations  of  the  Belligerents  with  Each  Other 295 

CHAPTER  XII 

The  Relations  between   England  and  the  United  States  as 
Affected  by  the  Far  Eastern  Question  and  the  War 325 

CHAPTER  XIII 
The  Treaty  of  Portsmouth 340 

Index  361 


INTERNATIONAL  LAW  AND  DIPLOMACY 

OF  THE 

RUSSO-JAPANESE  WAR 


INTRODUCTORY 

The  Causes  of  the  War 

In  his  history  of  the  HannibaHc  War,  Polybius  carefully 
distinguishes  between  the  real  or  fundamental  causes  of  the 
struggle  and  the  overt  acts  or  events  leading  up  to  that  great 
conflict.  He  justly  remarks  that  we  should  look  for  real 
causes  in  the  "motives  which  suggested  such  action  and  the 
policy  which  dictated  it."^  But  in  order  to  explain  fully  the 
fundamental  causes  of  the  Russo-Japanese  War,  it  would  be 
necessary  to  analyze  carefully  ^he  foreign  policies  of  Russia 
and  Japan  and  to  investigate  the  motives  which  suggested 
these  policies.  This  would  involve  an  exposition  of  Russian 
and  Japanese  political  and  economic  aims  and  ambitions  as 
illustrated  by  a  complete  history  of  Russian  and  Japanese 
expansion,  more  particularly  of  the  Russian  advance  to  the 
Pacific  and  the  repeated  efforts  of  Japan  to  obtain  a  pre- 
ponderance of  influence  in,  if  not  a  positive  control  over,  the 
affairs  of  Korea.  For  such  an  exhaustive  discussion  the 
writer  has  neither  the  requisite  knowledge  nor  sufficient 
space  at  his  disposal.  The  reader  of  this  volume  must,  there- 
fore, be  content  with  a  brief  sketch  or  outline  of  the  under- 
lying issues  at  stake  between  Japan  and  Russia. 

^Polybius  (Shuckburgh's  trans.)  Ill,  6. 


2  THE    RUSSO-JAPANESE    WAR 

For  Japan,  except  possibly  in  Korea,  these  issues  appear 
to  be  economic  rather  than  poHtical  in  their  nature.  They 
are  to  be  found  in  the  "enormous  increase  of  her  popula- 
tion" ;  the  "immense  growth  of  her  trade  and  industries" ; 
the  slow  progress  of  her  agriculture,  which  is  "no  longer 
able  either  to  support  her  increased  population  or  to  produce 
enough  raw  articles  for  her  manufactures" ;  the  consequent 
need  of  new  sources  of  supply,  as  well  as  an  outlet  or  field 
of  colonization  and  economic  enterprise  for  her  surplus  pop- 
ulation; and  finally,  the  need  of  "an  increased  importation 
of  raw  material  and  foodstuffs  and  an  increased  exportation 
of  manufactures."^ 

Japan's  interests  in  China — probably  the  most  important 
stake  in  this  war — also  seem  to  be  primarily  economic  rather 
than  political.''  They  are  apparently  based  on  a  desire  for 
trade  advantages,  the  gaining  of  which  involves,  under  pres- 
ent conditions,  the  maintenance  of  the  principle  of  the  open 
door  in  China,  or  the  policy  of  equal  economic  opportunity 
for  all  nations.  This  in  turn  involves,  as  a  means  to  that 
end,  the  preservation  of  the  territorial  sovereignty  or  integ- 
rity of  China;  for  if  that  country  be  dismembered  or  par- 
titioned into  "spheres  of  interest"  or  "influence,"  it  might 
eventually  fall  a  prey  to  the  systematic  commercial  exploita- 
tion and  exclusive  protective  systems  of  the  several  Powers 
exercising  political  influence  or  control  in  the  regions  ac- 
quired by  them. 

The  interests  of  Russia  in  the  Far  East,  on  the  other  hand, 
appear  to  be  primarily  political  rather  than  economic,  and 
are,  therefore,  less  vital  than  those  of  Japan.     Russia  is  still 

*  The  above  citations  are  from  the  Introduction  to  Dr.  Asakawa's  ex- 
cellent work  entitled  The  Russo-Japanese  Conflict,  pp.  i-8,  passim. 

*  They  are  probably  political  only  in  a  negative  sense,  i.  e.,  as  opposed 
to  aggressive  political  designs  on  the  part  of  any  other  Power. 


THE    CAUSES    OF    THE    WAR  3 

essentially  in  the  agricultural  stage  of  her  development,  and, 
in  an  economic  sense,  she  is  largely  sufficient  unto  herself. 
Speaking  broadly,  it  may  be  said  that  she  produces  what  she 
consumes  and  consumes  what  she  produces.  Her  "economic 
interests  are,  even  in  Manchuria,  rather  for  her  glory  as  a 
great  expanding  empire  than  for  any  imperative  need  of 
trade  and  emigration  in  that  particular  part  of  her  Asiatic 
dominion;  while  similar  interests  of  Japan,  primarily  in 
Korea  and  secondarily  in  Manchuria,  are  vital,  as  they  are 
essential  for  her  own  life  and  development  as  a  nation."^ 

A  mere  glance  at  the  globe  will  suffice  to  show  how  greatly 
the  history  of  Russian  expansion  has  been  influenced  by  her 
geographical  situation.  Ever  since  the  days  of  Peter  the 
Great,  who  first  discerned  the  possibilities  of  the  future,  the 
foreign  policy  of  Russia  has  been  largely  controlled  by  a 
desire  to  obtain  access  to  the  sea  in  four  directions,  viz. — the 
Baltic  Sea,  the  Black  Sea  and  the  Mediterranean,  the  Persian 
Gulf,  and  the  Pacific  Ocean.  Her  desire  for  the  control  of 
the  Baltic  Sea  has  been  but  partially  realized,  owing  to  the 
maritime  rivalry  of  England,  Germany,  and  Sweden ;  after 
several  failures  she  finally  secured  a  foothold  on  the  Black 
Sea,  but  her  successive  attempts  to  obtain  control  of  Con- 
stantinople and  the  passageway  of  the  Bosporus  and  the 
Dardanelles  from  the  Black  Sea  to  the  Mediterranean  have 
been  frustrated  by  the  interference  of  the  Powers,  more  par- 
ticularly of  England,  who  has  also  restrained  her  from  ob- 

*Asakawa,  op.  cit.,  p.  48.  The  truth  of  the  former  part  of  the  above 
statement  is  shown  by  the  fact  that,  while  Russia's  vested  interests  in 
Manchuria  are  enormous,  her  commercial  success  there  has  been  re- 
markably small.  Such  apparent  success  as  she  obtained  in  Manchuria 
was  due  to  the  protective  and  exclusive  policy  of  the  Russian  Govern- 
ment and  to  the  artificial  stimulus  which  was  furnished  by  the  building 
of  railways  and  the  activity  of  the  Russo-Chinese  Bank.  See  recent 
works  on  Manchuria,  especially  Weale,  Manchu  and  Muscovite,  passim. 


4  THE    RUSSO-JAPANESE    WAR 

taining  a  foothold  on  the  Persian  Gulf;  and  her  recent  at- 
tempt to  become  the  dominant  power  on  the  Pacific  has  been 
defeated  by  Japan,  the  England  of  the  Far  East.^ 

The  Russian  advance  across  the  Ural  Mountains  into 
Siberia  was  begun  in  the  latter  part  of  the  sixteenth  century 
under  the  leadership  of  the  Stroganoffs,  a  rich  and  powerful 
corporation  of  merchants,  which  flourished  during  the  reign 
of  Ivan  IV.  In  1581  the  Cossack  robber  outlaw  Yermak 
announced  to  the  Czar  the  conquest  of  a  new  "Siberian 
Kingdom."  In  the  latter  part  of  the  sixteenth  century  was 
begun  the  construction  of  a  line  of  towns  across  Siberia, 
which  finally  reached  the  Pacific  at  Okhotsk  in  1638.  This 
place  was  too  far  north,  however,  to  make  a  really  service- 
able port,  and  the  control  of  the  Amur  River  next  became 
the  object  of  Russian  ambition.  In  the  seventeenth  century 
the  repeated  clashing  of  the  Cossacks  and  Manchus  in  this 
region  led  to  diplomatic  negotiations  between  the  Muscovite 
and  the  Chinese  Governments  which  resulted  in  1681  in 
the  Treaty  of  Nerchinsk.  By  this  treaty  the  Russians  were 
excluded  from  the  region  of  the  Amur ;  and  the  Argun  River 
and  the  Stanovoi  Mountains  were  fixed  upon  as  the  boundary 
line  between  the  Empires  of  China  and  Muscovy.® 

More  than  a  century  and  a  half  passed  before  another  at- 
tempt was  made  to  reach  the  Amur.  In  1847  Count  Nikolas 
Muravieff  (later  known  as  Count  of  the  Amur  or  Muraviejff 
Amursky)  became  Governor  of  Eastern  Siberia.  His  suc- 
cess in  provisioning  the  Russian  Pacific  fleet  by  way  of  the 
Amur  River  during  the  Crimean  War  (1854-1861),  the  re- 

*  For  a  good  general  sketch  or  outline  of  the  history  of  the  "Expan- 
sion of  Russia,"  see  Rambaud,  The  Case  of  Russia. 

'  For  the  main  provisions  of  this  treaty,  see  Weale,  Manchu  and  Mus- 
covite, pp.  40-41.  For  the  text,  see  De  Martens,  Nouveau  recueil  ge- 
nerate, t.  XVII,  2nd  part,  p.  173. 


i 


THE    CAUSES   OF   THE   WAR  5 

pulse  of  the  allied  Anglo-French  squadron  by  this  Russian 
fleet  in  1854-55,  and  the  defeat  of  Russian  policy  in  the 
nearer  East  as  the  result  of  the  Crimean  War,  together  with 
the  personal  appeals  of  Count  Muravieff,  seem  to  have  fur- 
nished the  arguments  which  convinced  the  Russian  Govern- 
ment of  the  importance  of  the  Amur  to  the  interests  of  Rus- 
sia, and  that  the  line  of  least  resistance  to  the  realization  of 
Russian  dreams  of  expansion  lay  in  the  direction  of  the 
Pacific.  In  1857  Count  Muravieff,  armed  with  full  discre- 
tionary powers  as  the  result  of  a  visit  to  St.  Petersburg, 
began  a  systematic  advance  which  resulted  in  the  Treaty  of 
Aigun''  in  May.  1858.  China  being  then  at  war  with  Eng- 
land and  France,  the  Chinese  frontier  authorities  consented 
to  the  cession  to  Russia  of  the  left  bank  of  the  Amur,  or  the 
vast  territory  north  of  this  river  as  far  as  the  Ussuri,  and  of 
both  banks  from  thence  to  its  mouth.  The  Treaty  of  Aigun, 
which  had  not  been  signed  by  the  Chinese  Central  Govern- 
ment, was  replaced  by  the  Treaty  of  Peking  in  November, 
1860.^  This  important  treaty,  the  terms  of  which  were 
highly  favorable  to  Russia,  was  secured  by  the  skillful  diplo- 
macy of  General  Ignatieff,  who  had  won  the  favor  of  the 
Chinese  Government  by  acting  as  mediator  between  China 
and  the  allies.  It  fixed  the  bounrlaries  of  Manchuria  as  they 
nominally  existed  at  the  outbreak  of  the  Russo-Japanese 
War.  Russia  thus  acquired,  in  addition  to  the  left  bank  of 
the  Amur,  the  region  on  the  Pacific  lying  east  of  the  Ussuri 
and  the  Amur  rivers  bordering  on  the  Sea  of  Japan  and  ex- 
tending as  far  south  as  Korea.''  Russia  had  obtained  ix)sses- 
sion  of  Maritime  Manchuria,  which  was  to  furnish  her  with 

'De  Martens,  op.  cit.,  t.  XVII,  ist  pt.,  p.  i. 
'De  Martens,  op.  cit.,  2nd  pt.,  p.  181. 
•For  details,  see  Weale,  op.  cit.,  pp.  51-52. 


6  THE    RUSSO-JAPANESE    WAR 

a  port  on  the  Pacific  (Vladivostok)  in  a  much  more  temper- 
ate region  than  any  she  had  hitherto  occupied,  and  had  also 
completely  shut  China  off  from  direct  access  to  the  Sea  of 
Japan.  In  1861  a  Russian  man-of-war  took  possession  of 
the  Japanese  islands  of  Tsushima  in  the  Korean  straits,  but 
it  was  obliged  to  withdraw  at  the  instance  of  the  British 
Minister.  In  1875  the  long  island  of  Sakhalin,  for  many 
years  (since  1852)  the  subject  of  controversy  between  Japan 
and  Russia,  was  formally  surrendered  to  Russia  by  Japan  in 
return  for  the  sterile  Kurile  islands. 

The  period  between  i860  and  1890  was  devoted  to  colon- 
ization and  the  promotion  of  commerce  in  these  newly- 
acquired  provinces — Amur  and  Primorsk.  The  visit  of  the 
Czarevitch  in  the  Far  East  in  1891  seems  to  have  had  a  very 
important  influence  upon  the  course  of  subsequent  events. 
It  brought  St.  Petersburg  to  a  specific  knowledge  of  condi- 
tions in  the  Far  East ;  led  to  a  realization,  on  the  part  of  the 
Russian  Home  Government,  of  the  rising  importance  of 
Japan  as  a  Pacific  power;  and  created  a  conviction  of  the 
necessity  for  Russia  to  increase  and  consolidate  her  power  in 
the  Far  East  if  she  desired  to  maintain  and  strengthen  her 
position  in  that  quarter  of  the  globe.  The  Czarevitch  also  in 
1 89 1  cut  the  first  sod,  near  Vladivostok,  for  the  great  Trans- 
Siberian  Railway. 

The  unexpected  outcome  of  the  Chino- Japanese  War  in 
1894-95  afforded  Russia  an  opportunity  of  at  once  admin- 
istering a  severe  blow  to  Japan  and  of  ingratiating  herself 
with  China.     The  Treaty  of  Shimonoseki^"  between  these 

"For  the  text  of  the  treaty,  see  U.  S.  House  Documents,  54th  Con- 
gress, I  St  session,  Vol.  I,  pp.  200-203.  It  is  also  printed  in  the  Appen- 
dix to  Beveridge,  Russian  Advance.  For  the  French  text,  see  Appendix 
to  La  Guerre  Sino-Japonaise,  by  N.  Ariga. 


THE    CAUSES    OF    THE    WAR  7 

two  belligerents,  signed  on  April  17,  if^95.  pnjvided,  among 
other  things,  for  the  absolute  independence  of  Korea,  the 
cession  to  Japan  of  the  Liao-tung  Peninsula,  Formosa,  the 
Pescadores,  and  an  indemnity  of  JOO,ooo,cx)0  taels.  The 
Japanese  control  of  the  Liao-tung  Peninsula  and  Port  Ar- 
thur (the  key  to  Peking),  Manchuria,  and  Korea,  meant  a 
death  blow  to  Russia's  hopes  of  expansion  southward  and  of 
thus  obtaining  one  or  more  ice- free  ports  on  the  Pacific.  It 
is,  therefore,  not  at  all  surprising  that  Russia  acceded  to  Li- 
Hung  Chang's  appeal  for  intervention,  although  the  motives 
of  France  and  Germany  in  joining  that  intervention  are  less 
clearly  discernible.  The  result  of  the  interchange  of  views 
between  Russia.  (Germany,  PVance.  and  England  which  fol- 
lowed was  that  the  Russian,  French,  and  German  representa- 
tives at  Tokio  joined,  in  the  latter  part  of  April,  in  a  "friend- 
ly recommendation"  to  the  Japanese  Government,  to  the 
effect  that  the  "contemplated  possession  of  the  Liao-tung 
Peninsula  by  Japan  would  not  only  constitute  a  constant 
menace  to  the  capital  of  China,  but  would  also  render  the 
independence  of  Korea  illusory,  and  thus  jeopardize  the  per- 
manent peace  of  the  Far  East."  Accordingly,  "in  a  spirit  of 
cordial  friendship  for  Japan,"  they  counselled  the  Japanese 
Government  "to  renounce  the  definitive  i)ossession  of  the 
Liao-tung  Peninsula."** 

Meanwhile,  the  three  intervening  Powers,  by  the  aug- 
mentation and  concentration  of  their  I'astern  tleets,  made  a 
display  of  overwhelming  force,  "Russia  going  even  so  far  as 
to  prepare  the  army  contingents  in  the  Amur  region  for  quick 
mobilization."'*'      The  Japanese  Goveninimt    in  \  iew  of  the 

"  From  the  Russian  note  to  the  Jap.incsc  CiuvcriiiiKiit.     Reprinted  by 
Lawrence.  H'ar  and  Neutrality  in  the  I-'ar  Last  (itid  cd. ),  p.  ll. 
"  Asakawa.  p.  73. 


8  THE    RUSSO-JAPANESE    WAR 

exhaustion  of  its  resources,  and  being  urged  by  the  British 
Minister  "to  make  to  the  susceptibilities  of  Europe  all  con- 
cessions compatible  with  the  dignity  and  permanent  inter- 
ests" of  Japan, ^^  decided,  early  in  May,  to  relinquish,  for  an 
additional  indemnity  of  30,000,000  taels  from  China,  all  of 
the  Liao-tung  Peninsula.  On  May  10,  1895,  the  Mikado  is- 
sued an  Imperial  Rescript,  countersigned  by  all  his  ministers, 
announcing  that,  "out  of  regard  for  peace"  and  a  disinclina- 
tion to  cause  suffering  to  his  people,  or  "to  impede  the  prog- 
ress of  the  national  destiny  by  embroiling  the  Empire  in  new 
complications,"  he  had  decided  to  accept  "the  advice  of  the 
friendly  Powers,"  and  had  commanded  his  government  "to 
negotiate  with  the  Chinese  Government  respecting  all  ar- 
rangements for  the  return  of  the  particular  districts."^*  In 
accordance  with  this  proclamation,  a  convention  between 
China  and  Japan  for  the  retrocession  of  the  Liao-tung  Pen- 
insula was  signed  at  Peking  on  November  8,  1895,  j^st  six 
months  after  the  exchange  of  the  ratification  of  the  Treaty 
of  Shimonoseki/^ 

The  retrocession  of  the  Liao-tung  Peninsula  to  China, 
although  bitter  medicine  at  the  time,  proved  for  Japan  a 
blessing  in  disguise.  It  marks  a  turning  point  in  her  history, 
more  particularly  in  her  relations  with  Russia.  Although 
it  can  hardly  be  considered  a  fundamental  cause  of  the 
Russo-Japanese  War  (which  was  sooner  or  later  inevitable, 

"  M.  de  Blowitz  to  the  London  Times,  May  3,  1895,  p.  5.  Cited  by 
Asakawa,  p.  76. 

"  This  proclamation  is  printed  in  full  in  Hosie,  Manchuria,  pp.  41-42, 
and  by  Beveridge,  Appendix.  For  the  French  text,  see  Ariga,  La 
Guerre  Sino-Japonaise,  Appendix  VI. 

"Japan  made  a  strong  effort  to  secure  from  China  a  promise  that 
under  no  circumstances  would  the  latter  voluntarily  cede  the  Liao-tung 
Peninsula  or  any  part  thereof  to  any  other  Power;  but  this  attempt  is 
said  to  have  been  defeated  by  the  action  of  the  three  allies. 


THE    CAUSES    OF    THE    WAR  9 

in  any  case),  yet  it  brought  Russia  face  to  face  with  Japan  in 
Korea  and  {^^reatly  liastened  tlie  outbreak  of  the  struggle. 
If  Japan  had  entertained  any  delusions  regarding  the  ulti- 
mate designs  of  Russia  or  the  real  character  of  European 
diplomacy,  these  illusions  now  vanished  forever,  and  Japan 
realized,  as  she  never  had  before,  the  necessity  of  straining 
every  nerve  to  increase  and  strengthen  her  naval  and  mili- 
tary arms  to  the  utmost,  if  she  desired  to  assume  a  leading 
role  in  the  affairs  of  the  Orient,  or  perhaps  even  to  main- 
tain her  independence.  As  Dr.  Asakawa  testifies:'"  "Japan 
suddenly  awoke  to  an  absorbing  desire  which  left  her  little 
room  for  the  question  of  revenge.  It  became  to  her  as  clear 
as  daylight  that  the  new  position  she  had  acquired  in  the 
Orient  by  her  victory  over  China  could  be  maintained,  and 
even  her  indei)endence  must  be  guarded,  only  by  an  arma- 
ment powerful  enough  to  give  her  a  voice  among  the  first 
Powers  of  the  world.  If  she  would  not  retire  within  herself, 
and  finally  cease  to  e.xist.  she  must  c<>nii)ete  with  the  greatest 
nations,  not  only  in  the  arts  of  peace,  but  also  in  those  of 
war.  Moreover,  a  far  vaster  conflict  than  she  had  ever 
known  in  her  history,  excepting  the  Mongol  invasion  of  the 
thirteenth  century,  was  seen  to  be  awaiting  her."  From 
this  time  on.  the  budgets  of  the  Japanese  Government  show 
a  great  increase  in  army  and  naval  expenditures.''  Subse- 
qtient  events  only  tended  to  make  the  Jaj)anese  Government 
and  people  more  resolute  in  their  efforts  in  this  direction. 

In  1 89 1  Russia  had  begun,  at  a  tremendous  cost,  the  con- 
struction of  the  great  Trans- Asiatic  Railroad  across  Siberia 
to  Vladivo.st()k.  I'.ut  the  route  from  L-ike  r.aikal  to  \'ladi- 
vostok  through  the  .\mur  province  north  of  the  .Amur  River 

"  The  I\ussi>-Jaf>ancsr  Conflict,  pp.  79-80. 
"  See  tabic  in  Asakawa,  p.  80. 


10  THE    RUSSO-JAPANESE    WAR 

proving  well-nigh  impossible,  it  was  resolved  to  run  the 
railway  through  Manchuria  by  a  more  direct  and  practicable 
route.  By  her  successful  intervention  in  the  Chino-Japan- 
ese  War,  Russia  had  placed  China  under  a  debt  of  fear  and 
gratitude,  and  this  debt  was  greatly  increased  by  the  guar- 
antee by  the  Russian  Government  of  a  4  per  cent,  loan  to 
China,  on  very  liberal  terms, ^**  of  400,000,000  francs,  the 
interest  of  which  was  guaranteed  by  the  Russian  Govern- 
ment without  security.  Ostensibly  to  facilitate  the  execu- 
tion of  this  loan,  but  really  to  promote  Russian  commercial 
and  political  designs  in  Eastern  Asia,  the  Russo-Chinese 
Bank  was  organized,  in  1895,  with  Prince  Uktomsky  as 
President.  The  Chinese  Government  was  induced  to  con- 
tribute 5,000,000  taels  toward  the  capital  of  the  bank,  and  by 
the  end  of  the  year  1896  Prince  Uktomsky  had  obtained 
valuable  concessions  or  privileges  from  China  in  the  way  of 
important  railway  and  telegraph  franchises,  the  receipt  of 
tax  returns,  management  of  local  finances,  coining  privileges, 
etc.^" 

In  the  meantime,  Russian  diplomacy  appears  to  have  been 
active  through  its  regular  official  channels.  On  September 
30,  1896,  the  so-called  "Cassini  Convention"  was  ratified  at 
Peking.  This  secret  agreement,  which  has  been  the  subject 
of  considerable  controversy  (its  existence  having  been  offi- 
cially denied  by  the  Russian  Government),  conceded  to 
Russia  privileges  of  the  most  important  nature  "as  a  re- 

"  This  loan  was  issued  principally  from  Paris  in  July,  1895,  and  was 
intended  to  cover  one-half  of  China's  indemnity  to  Japan.  It  was  issued 
at  94%,  bore  4  per  cent,  interest,  and  was  payable  in  thirty-six  years. 
The  other  half  (£16,000,000)  was  supplied  by  British  and  German  capi- 
talists at  5  per  cent,  interest.     See  Asakawa,  pp.  83-84. 

"On  the  Russo-Chinese  Bank,  see  Cordier,  III,  pp.  310-312,  and 
Asakawa,  p.  85. 


THE    CAUSES    OF    THE    WAR  II 

sponse  to  the  loyal  aid  given  by  Russia  in  the  retrocession 
of  the  Liao-tiing  and  its  dependencies."  These  included : 
( I )  The  right  to  prolong  the  Siberian  Railway  into  Chinese 
territory  across  the  northern  part  of  Manchuria  to  Vladivo- 
stok. The  control  of  all  railways  built  by  Russia  in  northern 
Manchuria  was  to  be  placed  in  the  hands  of  Russia  for  thirty 
years,  at  the  end  of  which  time  China  was  to  be  allowed  to 
redeem  them,  although  the  manner  of  such  redemption  was 
to  be  "left  for  future  consideration."  (2)  If  China  should 
find  it  "inconvenient"  to  build  the  railroad  in  contemplation 
from  Niu-chwang  to  Mukden,  she  was  to  allow  Russia  t<» 
provide  the  necessary  funds,  but  was  to  be  allowed  to  redeem 
this  road  at  the  end  of  ten  years.  (3)  The  Russian  rail- 
ways in  Manchuria  were  to  be  "protected"  by  the  Chinese 
local,  civil,  and  military  authorities;  but,  "owing  to  the  fact 
that  the  said  railways  will  pass,  for  the  greater  part,  through 
barren  and  sparsely  inhabited  territory,  in  which  it  will  be 
difficult  for  the  Chinese  authorities  to  be  always  able  to  grant 
the  necessary  protection  and  aid,  Russia  shall  be  allowed  to 
place  special  battalions  of  horse  and  foot  soldiers  at  the 
various  important  stations  for  the  better  protection  of  the 
railway  property."  (4)  Russians  as  well  as  Chinese  were 
to  be  permitted  hereafter  to  exploit  and  open  any  of  the  mines 
in  northern  Manchuria.  (5)  Should  China  desire  to  re- 
form her  army  organization  in  the  said  province  in  accord- 
ance with  the  Western  system,  she  was  to  be  permitted  to 
engage  Russian  military  officers  for  that  j)urpose.  (6) 
Since  "Russia  has  never  jjossessed  a  seai)ort  in  .\sia  which 
is  free  from  ice  and  open  the  year  round,"  and  since  if  "there 
should  suddenly  arise  military  operations  on  this  Continent, 
it  will  naturally  be  difficult  for  the  Russian  I^astern  Seas  and 
Pacific  Fleets  to  move  about  freely  antl  at  pleasure,"  China 


12  THE    RUSSO-JAPANESE    WAR 

declared  herself  "willing  to  lease  temporarily  to  Russia  the 
port  of  Kiao-chau  in  the  province  of  Shan-tung,  the  period 
of  such  lease  being  limited  to  fifteen  years.  .  .  .  But, 
should  there  be  no  danger  of  military  operations,  Russia  shall 
not  enter  immediately  into  possession  of  the  said  port,  or 
hold  the  important  points  dominating  the  port,  in  order  to 
obz'iate  the  chance  of  exciting  the  jealousy  and  suspicions  of 
other  Powers."  (7)  China  was  to  properly  fortify  the 
Liao-tung  ports  of  Port  Arthur  and  Talien-wan  "with  all 
haste,"  "in  order  to  provide  against  future  dangers;"  and 
Russia  was  to  lend  all  necessary  assistance  "in  helping  to 
protect  these  two  ports,"  and  was  not  to  "permit  any  foreign 
Power  to  encroach  upon  them."  China,  on  her  part,  also 
bound  herself  "never  to  cede  them  to  another  country,  but  if, 
in  future,  the  exigencies  of  the  case  require  it,  and  Russia 
should  find  herself  suddenly  involved  in  a  war,"  China  con- 
sented "to  allow  Russia  temporarily  to  concentrate  her  land 
and  naval  forces  within  the  said  ports,  in  order  better  to 
enable  Russia  to  attack  the  enemy  or  to  guard  her  own  posi- 
tion." If,  however,  there  was  no  danger  of  military  opera- 
tions, China  was  to  retain  entire  control  over  the  administra- 
tion of  these  ports.  ^^ 

^^  For  the  text  of  the  "Cassini  Convention,"  see  the  appendices  to 
Weale,  Re-Shaping  of  the  Far  East,  and  Beveridge,  Russian  Advance. 
As  stated  in  the  text,  the  existence  of  this  Convention  was  denied  by 
Russia  and  it  is  characterized  by  some  writers  as  "apocryphal."  The  doc- 
ument may  be  unauthentic  in  some  particulars,  but  its  substantial  truth 
appears  now  to  be  generally  admitted  and  the  fact  of  its  existence  seems 
to  be  borne  out  by  subsequent  events.  For  some  convincing  arguments 
on  this  head,  see  Asakawa,  pp.  90  fif. 

Earlier  in  the  same  year  (1896)  a  secret  treaty  of  alliance  between 
China  and  Russia  appears  also  to  have  been  concluded.  The  Russian 
text  has  never  been  published,  but  Asakawa  (pp.  85-87)  gives  the  fol- 
lowing abstract  from  a  Japanese  source:  "It  was  agreed,  in  secrecy, 
that,  if  Russia  should  come  into  conflict  with  other  Asiatic  Powers,  she 


THE    CAUSES    OF    THE    WAR  1 3 

At  about  the  same  time  (September,  1896)  there  was 
concluded  an  open  agreement  between  the  Chinese  Govern- 
ment and  the  Russo-Chinese  Bank  providing  for  the  con- 
struction of  a  railway  through  Manchuria  connecting  tlie 
Trans-Baikal  and  South  Ussuri  lines  of  the  Siberian  railway- 
system.  This  "Agreement,"  together  with  the  "Statutes" 
of  the  Railway  promulgated  by  the  Czar,  provided  for  the 
organization  of  the  Chinese  Eastern  Railway  Company 
under  the  management  of  a  board  whose  nominal  head  was 
the  Chinese  Minister  at  St.  Petersburg,  but  whose  real  head, 
the  vice-president,  was  under  the  supervision  of  the  Russian 
Minister  of  Finance.  The  general  terms  of  the  "Agree- 
ment" were  that  the  shareholders  should  be  Russians  and 

should  be  allowed  to  make  free  use  of  any  port  or  harbor  on  the  Chi- 
nese coast,  and,  in  case  of  urgent  need,  levy  troops  from  among  the  Chi- 
nese people.  If  a  protest  should  be  made  by  other  Powers,  China 
should  answer  that  she  was  powerless  to  resist  Russian  demands.  .  .  . 
In  view  of  the  great  disadvantages  of  the  ice-bound  naval  harbors  of 
Russia,  China  agreed  to  allow  her  in  time  of  peace  a  free  use  of  Port 
Arthur,  or,  if  the  other  Powers  should  object,  of  Kiao-chau.  If  the 
latter  should  be  found  inadequate,  Russia  might  choose  any  harbor  on 
the  coast  of  Kiang-su  and  Che-kiang.  If,  on  the  other  hand.  China 
should  be  at  war  with  another  Power,  Russia  should  endeavor  to  effect 
a  compromise  between  the  belligerents,  and.  if  the  effort  should  fail, 
it  should  be  the  duty  of  Russia  openly  to  assist  China  and  thereby 
strengthen  the  alliance  between  the  two  Powers.  .  .  .  If  a  war 
should  arise  between  Russia  and  Japan  concerning  Korea,  China  should 
allow  Russia  to  send  troops  toward  the  Yalu,  so  as  to  enable  them  to 
attack  the  western  boundary  of  Korea." 

Cordicr  (Hisloirc  dcs  relations  dc  la  Chine  avrc  les  f<uissiinccs  occi- 
dentales.  Ill,  pp.  347-48)  is  of  the  opinion  that  the  Cassini  Convention 
can  not  be  considered  as  an  official  or  authentic  docaiment.  He  thinks 
it  is  a  hybrid  which  contains  clauses  borrowed  from  two  documents : 
(i)  the  convention  with  the  Russo-Chinese  Bank  relating  to  the  Man- 
churian  railway,  signed  in  September.  1896;  and  (2)  the  secret  treaty 
of  alliance  of  March-April  of  the  same  year.  This  view  is  adoptc<l  by 
M.  Rey  in  the  Rn-nc  C.cnerale  dc  Droit  International  Public  for  1005. 
p.  225. 


14  THE    RUSSO-JAPANESE    WAR 

Chinese  only;  that  the  railway  should  be  begun  within 
twelve  months  and  completed  within  six  years ;  that,  on  the 
expiration  of  eighty  years  from  the  completion  of  the  line, 
the  railway,  together  with  all  its  property,  should  pass,  with- 
out payment,  to  the  Chinese  Government,  which  was  not  to 
be  held  responsible  for  any  losses  which  the  company  might 
sustain  during  that  period;  and  that  the  Chinese  Govern- 
ment was  to  have  the  right,  at  the  expiration  of  thirty-six 
years  from  its  inauguration,  to  take  over  the  railway  on  due 
payment,  such  payment  to  include  the  actual  cost  thereof, 
together  with  all  interest  thereon.  The  "Agreement"  also 
contained  a  provision  for  the  protection  of  the  railway  and 
its  employees  by  the  Chinese  Government,  and  the  "Stat- 
utes" provided  for  the  policing  of  the  lands  assigned  to  the 
road  and  its  appurtenances  by  "police  agents  appointed  by 
the  company."-^  "It  was  also  provided  that  during  the 
eighty  years  of  Russian  management,  all  commodities  car- 
ried between  China  and  Russia  by  the  railway  should  pay  in 
China  duties  one-third  less  than  the  ordinary  import  and 
export  duties  in  that  Empire, — a  provision  hardly  recon- 
cilable with  the  open  door  principle,  and  explicitly  contrary 
to  the  principles  proposed  by  the  United  States  to  the  Pow- 
ers two  years  later. ''^^ 

The  road  to  Vladivostok  through  Manchuria  was  now 
open,   and,   in   accordance  with  the  above  agreement,   the 

"  In  these  police  agents,  Asakawa  (p.  98)  discerns  the  origin  of  the 
famous  "railway"  or  "frontier  guards"  whose  existence  later  became 
an  important  problem  in  connection  with  the  Russian  evacuation  of 
Manchuria. 

"  Asakawa,  p.  99.  For  the  substance  of  the  "Agreement,"  see  Hosie, 
Manchuria,  pp.  43-44,  and  Asakawa,  pp.  96  flf.  The  "Statutes"  are 
printed  in  the  Appendix  to  Beveridge,  Russian  Advance,  pp.  473  ff.,  and 
in  Weale,  Re-Shaping  of  the  Far  East,  II,  pp.  444  ff.  App.  D. 


THE    CAUSES    OF    THE    WAR  I5 

Chinese  Eastern  or  Mancluirian  Railway  was  begun  in 
August,  1897.  But  Vladivostok  is  ice-bound  several  months 
of  the  year,  and  Russia  longed  for  a  port  which  was  ice-free 
the  whole  year  round.  An  oppfjrtunity  for  acquiring  such 
a  port  and  at  the  same  time  greatly  strengthening  her  stra- 
tegic position  on  the  Pacific  presented  itself  in  March,  1898, 
when  Germany  secured  a  99-ycar  lease  of  the  bay  and  port 
of  Kiaochau,^^  along  with  exclusive  mining  and  railway 
privileges  in  the  province  of  Shan-tung.  as  indemnity  for  the 
murder  of  two  German  Catholic  missionaries  at  the  hands  of 
a  Chinese  mob  during  the  previous  year.  A  precedent  was 
thus  set  which  went  far  to  palliate,  if.  indeed,  it  did  not  tend 
to  justify  a  similar  seizure  on  the  part  of  Russia.**  With 
the  plea  that  she  could  not  be  denied  what  had  been  granted 
to  Germany,  Russia  demanded  a  lease  of  Port  Arthur  and 
Talien-wan,"''  and  also  a  concession  for  a  railway  between 
these  ports  and  a  point  on  the  Manchurian  section  of  the 
Trans-Siberian  railroad.  These  concessions  were  made  to 
Russia  by  China  on  March  jj.  1898,  and  were  followed  by 
the  promise  of  the  lease  of  Wei-hai-wei  to  Great  Britain 
on  April  3^'  of  the  same  year,  as  a  means  of  "restoring  the 
balance  of  power  in  the  Gulf  of  Pe-chi-li,"-'   and  by  the 

"  The  port  Tsing-taii  at  the  entrance  to  the  bay  of  Kiao-chau  had 
been  seized  by  the  landing  of  600  German  marines  in  November,  1897. 
Li-Hung  Chang  justly  characterized  this  act  of  brigandage  as  "a 
flagrant  violation  of  treaties  and  of  International  I^iw."     See  Cordicr, 

in,  p.  353. 

"It  is  especially  worth  noting  in  this  connection  that  Kiao-chau  was 
to  have  been  leased  to  Russia  by  the  terms  of  the  "Cassini  Convention." 

"  Port  Arthur  was  to  he  open  only  to  Russian  and  Giincse  war  ves- 
sels, and  was  to  be  closed  to  all  the  ships  of  other  nations;  Talien-wan, 
on  the  other  han<I  (with  the  exception  of  a  portion  used  for  naval  pur- 
poses), was  to  be  an  open  port. 

"The  lease  was  not  actually  signed  until  July  i,  1898. 

"The   lease   of   Wei-hai-wei   to   Great    Hritain    was   approved    of  by 


l6  THE    RUSSO-JAPANESE    WAR 

French  occupation  under  lease  of  the  Kwang-chau  Bay  on 
the  southeastern  coast  of  China. 

The  Central  Manchurian  Railway,  i.  e.,  the  southern 
branch  of  the  Chinese  Eastern  or  Trans-Manchurian  Rail- 
way, connecting  Port  Arthur,  Dalny,  and  Niu-chwang  with 
Harbin  on  the  main  line,  was  now  built,  in  accordance  with 
the  terms  of  the  agreement  of  March  27,  1898,  by  which 
Russia  acquired  the  lease  of  Port  Arthur,  Talien-wan,  and 
adjacent  parts  of  the  Liao-tung  Peninsula.  Article  VIII  of 
this  agreement  provided  that  the  procedure  sanctioned  in 
1896,  regarding  the  construction  of  railways  by  the  Chinese 
Eastern  Railway  Company  across  Manchuria,  be  extended 
so  as  to  include  the  construction  of  this  branch  line. 

The  work  was  interrupted,  however,  by  the  Boxer  upris- 
ing in  1900,  which  had  important  results  for  China  and  the 
rest  of  the  world.  One  of  these  was  the  occupation  of  Man- 
churia by  Russian  troops  amidst  scenes  of  frightful  slaugh- 
ter. Even  the  treaty  port  of  Niu-chwang  was  seized,  and 
placed  under  the  civil  administration  of  Russian  authorities 
on  August  5.  On  August  14,  1900,  at  a  time  when  the 
troops  of  the  allies  had  almost  reached  Peking,  General 
Groderkoff,  then  in  command  of  the  northern  Russian  army 
in  Manchuria  and  Governor-General  of  the  Amur  province, 

the  Japanese  Government.  It  was  to  remain  in  the  possession  of  Eng- 
land so  long  as  Port  Arthur,  which  had  been  leased  for  twenty-five 
years  (subject  to  renewal  by  mutual  agreement),  remained  in  the  hands 
of  Russia.  On  these  leases,  see  especially  Asakawa,  ch.  4,  and  Bever- 
idge,  ch.  9.  The  latter  prints  several  of  the  important  texts  and  doc- 
uments. See  also  the  Appendices  to  Weale,  Re-Shaping  of  the  Far 
East.    See  Cordier,  III,  ch.  20,  for  the  texts  in  French. 

For  more  detailed  information  of  an  official  or  diplomatic  character 
regarding  these  occupations  and  leases,  see  the  British  Parliamentary 
Blue  Books  on  China  for  1898-1900,  and  the  U.  S.  House  Documents, 
S5th  Congress,  3rd  session  (Foreign  Relations,  1898),  pp.  182  ff. 


THE    CAUSES    OF    THE    WAR  I7 

wrote  to  the  Minister  of  War  at  St.  Petersburg:  "Fifty 
years  ago  Nevelskoy  raised  the  Russian  flag  at  the  mouth  of 
the  Amur,  on  its  right  bank,  and  laid  the  foundation  for  our 
possessions  on  that  great  river.  Now,  after  hard  fighting, 
we  have  taken  possession  of  the  right  bank,  thus  consoHdat- 
ing  the  great  enterprise  of  annexing  the  whole  of  the  Amur 
to  Russia's  dominions,  and  making  that  river  an  internal 
waterway  and  not  a  frontier  stream,  whereby  free  and  un- 
molested navigation  of  that  artery  through  one  of  the  vastest 
regions  of  the  Empire  has  been  secured."-"'  By  the  time  the 
Foreign  Legations  at  Peking  had  been  relieved,  the  greater 
portion  of  Manchuria  was  occupied  by  Russian  troops. 

In  order  to  allay  the  apprehensions  of  the  Powers,  the 
Russian  Government  issued  a  Circular  Note  to  the  Powers 
on  August  28,  1900,^®  in  which  it  was  explained  that  the 
military  occupation  of  Manchuria  was  purely  "temporary" 
in  its  nature  and  "had  been  solely  dictated  by  the  absolute 
necessity  of  repelling  the  aggression  of  the  Chinese  rebels, 
and  not  with  interested  motives,  which  are  absolutely  for- 
eign to  the  policy  of  the  Imperial  Government."  It  was 
furthermore  declared  that  as  soon  as  the  pacification  of 
Manchuria  shall  have  been  attained  and  the  necessary  meas- 
ures taken  for  the  protection  of  the  railway,  "Russia  would 

*•  Cited  by  Asakawa,  p.  145. 

"  In  a  Circular  Note  to  the  Powers  on  July  13,  1900,  Russia  had  laid 
down  the  fundamental  principles  which  she  considered  necessary  for 
the  maintenance  of  a  permanent  peace  in  the  Far  Elast.  These  were : 
(i)  harmony  between  the  Powers  having  interests  in  China;  (2)  the 
exclusion  of  all  idea  of  a  partition  of  the  Celestial  Empire;  (3)  the 
preservation  of  the  governmental  regime  formerly  existing  in  China ; 
and  (4)  the  reestablishmcnt  by  common  action  of  the  legitimate  Cen- 
tral Government  at  Peking.  C{.  the  response  of  Russia  to  Japan  on 
June  28.  1900,  cited  by  Baron  Suyematsu  in  the  Nineteenth  Century  for 
September,  1904,  p.  345.    See  also  Suyematsu,  The  Risen  Sun,  pp.  42-4J. 


l8  THE    RUSSO-JAPANESE    WAR 

not  fail  to  withdraw  her  troops  from  Chinese  territory, 
provided  that  the  action  of  the  other  Powers  does  not  place 
any  obstacle  in  the  way  of  such  a  measure. "^^  Similar  as- 
surances were  subsequently  given  by  leading  representatives 
of  the  Russian  Government.  ^^ 

In  spite  of  these  assurances,  Russia  remained  in  military 
occupation  of  Manchuria.  The  Russian  troops  withdrawn 
from  Peking  were  sent  to  Manchuria  and  large  naval  rein- 
forcements were  dispatched  to  the  Far  East.  A  military 
force  of  twelve  thousand  railway  guards  was  established  for 
the  protection  of  the  Manchurian  railways,  and  an  agree- 
ment concluded  in  November  of  the  same  year  (1900), 
between  a  representative  of  Admiral  Alexieff  and  the  Tartar 
General,  Tseng-chi,  of  Mukden,  known  as  the  Alexieff- 
Tseng  Agreement,^^  provided  that  the  Chinese  should  re- 
sume the  civil  government  of  Feng-tien  (Sheng-king),  the 
southern  province  of  Manchuria,  on  the  following  condi- 
tions :   that  the  Chinese  soldiers  be  disarmed  and  disbanded 

^  The  italics  are  the  author's.  See  Parliamentary  Blue  Book  on 
China,  No.  i,  No.  256.  Similar  assurances  that  Russia  had  no  territorial 
designs  in  China  were  given  to  the  United  States.  See  e.  g.,  U.  S.  House 
Documents  of  56th  Congress,  2nd  session  (Foreign  Relations,  1900), 
PP-  304,  372,  380. 

To  the  American  representative  at  St.  Petersburg,  Count  Lamsdorff 
volunteered  the  statement,  in  the  most  positive  terms,  that  Russia  had 
no  intention  whatever  of  acquiring  or  retaining  "a  single  inch  of  terri- 
tory in  either  China  or  Manchuria."  Ibid.,  p.  372. 

"  E.  g.,  by  Count  Lamsdorff,  on  October  25,  to  the  Russian  representa- 
tives abroad,  and  by  General  Kuropatkin  to  the  Governors-General 
of  the  Amur  and  Kwau-tung  provinces.  Cited  from  a  Japanese  source 
by  Asakawa,  p.  152,  note. 

"  For  the  text  of  this  agreement,  see  Asakawa,  pp.  166-67,  and  Blue 
Book  on  China,  No.  2  (1904),  p.  3.  Similar  agreements  described  as 
modus  Vivendi  appear  to  have  been  concluded  in  the  other  provinces  of 
Manchuria  between  the  Chinese  and  Russian  authorities.  See  Russian 
Official  Messenger  of  April  6,  1901,  cited  by  Asakawa  in  note  on  p.  168. 


THE    CAUSES    OF    THE    WAR  I9 

and  all  munitions  of  war  be  handed  over  to  the  Russians; 
that  all  forts  and  defences  in  Feng-tien  not  occupied  by  the 
Russians  be  dismantled ;  that  "Niu-chwang  and  other  places 
now  occupied  by  the  Russians  be  restored  to  the  Chinese 
civil  authorities  when  the  Russian  Government  is  satisfied 
that  pacification  of  the  provinces  is  complete" ;  that  law  and 
order  be  maintained  by  the  Chinese  local  police  under  the 
Tartar  general,  who,  in  case  of  emergency,  was  to  apply  for 
Russian  reinforcements  to  the  Russian  Political  Resident 
stationed  at  Mukden. 

Although  this  agreement  had  not  been  ratified  either  at 
St.  Petersburg  or  Peking,  its  contents,  as  published  in  the 
London  Times  on  January  3,  1901,  caused  general  astonish- 
ment in  the  diplomatic  world,  and  a  further  report  in  the 
beginning  of  February  that  Russia  was  urging  China  to 
ratify  the  agreement  led  Japan,  Great  Britain,  Germany,  and 
the  United  States  to  make  strong  representations  to  China 
on  this  subject.^'' 

Before  any  of  the  protests  of  the  Powers  had  reached 
Peking.  Count  Lamsdorff  had.  however,  on  February  6, 
explained  matters  to  Sir  Charles  Scott,  the  British  Minister 
at  St.  Petersburg.  He  denied  that  "Russia  had  concluded 
or  was  engaged  in  concluding,  with  China,  a  convention  or 
permanent  arrangement  which  would  give  Russia  new  rights 
and  a  virtual  protectorate  in  Southern  Manchuria'" ;  al- 
though he  admitted  that  "the  Russian  military  authorities 
who  had  been  engaged  in  the  temporary  occupation  and 
pacification  of  that  province  had  l)cen  directed,  when  rein- 
stating the  Chinese  authorities  in  their  former  posts,  to 
arrange  with  the  local  ci\i]  anthnritics  the  terms  of  a  modus 

"See  British  Blue  Book  on  China,  No.  2  (1904),  Nos.  8,  12,  13.  19. 


20  THE    RUSSO-JAPANESE    WAR 

Vivendi  between  them  for  the  duration  of  the  simultaneous 
presence  of  Russian  and  Chinese  authorities  in  Southern 
Manchuria,  the  object  being  to  prevent  the  recurrence  of  dis- 
turbances in  the  vicinity  of  the  Russian  frontier,  and  to 
protect  the  railway  from  the  Russian  frontier  to  Port 
Arthur."  He  also  admitted  that  "some  of  the  details  of  the 
proposed  modus  vivcndi  had  been  sent  for  consideration  to 
St.  Petersburg,"  but  he  insisted  that  no  convention  or  ar- 
rangement with  regard  to  Manchuria  had  been  concluded 
with  the  Central  Government  of  China.  He  assured  the 
British  ambassador  that  the  Czar  had  no  "intention  of  de- 
parting in  any  way  from  the  assurances  which  he  had  pub- 
licly given  that  Manchuria  would  be  entirely  restored  to  its 
former  condition  in  the  Chinese  Empire  as  soon  as  circum- 
stances admitted  of  it." 

This  communication  closed,  however,  with  the  following 
ominous  statement :  "When  it  came  to  the  final  and  com- 
plete evacuation  of  Manchuria,  the  Russian  Government 
would  be  obliged  to  obtain  from  the  Central  Government  of 
China  an  effective  guarantee  against  the  recurrence  of  the 
recent  attack  on  her  frontier  and  the  destruction  of  her  rail- 
way, but  had  no  intention  of  seeking  this  guarantee  in  any 
acquisition  of  territory  or  of  an  actual  or  virtual  protec- 
torate over  Manchuria,  the  object  being  simply  to  guarantee 
the  faithful  observance  in  the  future  by  China  of  the  terms 
of  the  agreement  which  she  had  been  unable  to  fulfill  during 
the  disturbance."^* 

Within  a  few  weeks  after  this  statement  by  Count  Lams- 
dorff,  it  was  learned  that  the  Russian  Government  was  press- 
ing China  hard  for  a  new  agreement  providing  for  "an  ef- 

'*  Blue  Book  on  China,  No.  2  (1901),  and  China,  No.  2  (1904),  No.  11. 


THE    CAUSES    OF    THE    WAR  21 

fective  guarantee''  such  as  Russia  desired.  On  February 
28,  1901,  there  was  published  in  the  London  Times  the 
substance  of  an  agreement  between  Count  Lamsdorff  and 
Yang-yu  (known  as  the  Lamsdorff- Yang-yu  Convention), ^^ 
the  Chinese  representative  at  St.  Petersburg.  According  to 
the  supposed  terms  of  this  agreement  (of  which  there  exists 
no  authentic  text),  the  Czar  agreed  to  "restore"  the  whole 
of  Manchuria  to  China  on  the  following  conditions :  ( i ) 
that  a  corps  of  the  railway  guards  provided  for  by  the  Man- 
churian  Railway  Agreement  be  retained  until  order  shall  be 
restored  and  until  China  shall  have  fulfilled  certain  obliga- 
tions set  forth  in  the  last  four  articles  of  the  convention ; 

(2)  that  China  agree  "not  to  organize  an  army  until  the 
(Manchurian)  railway  is  completed  and  opened  to  traffic", 
and  that  "when  military  forces  are  eventually  organized, 
their  numbers  shall  be  fixed  in  consultation  with  Russia" ; 

(3)  that  the  importation  of  arms  and  munitions  of  war  into 
Manchuria  be  i)rohil)ited;  (4)  that  "China  shall  dismiss 
from  office  all  Generals-in-Chief  (Tartar  Generals)  and 
high  officials  whose  actions  conflict  with  friendly  relations, 
and  who  are  denounced  for  that  reason  by  Russia.  China 
may  organize  mounted  and  foot  police  in  the  interior  of 
Manchuria.  Init  their  numbers  shall  be  fixed  in  consultation 
with  Russia";  (6)  that  "no  subject  of  another  Power  be 
employed  to  train  naval  or  military  forces  in  the  Northern 
Provinces  (/.  c,  the  provinces  in  North  China)";  (7)  that 
"without  the  consent  of  Russia.  China  shall  not  concede 
mining,  railway,  or  other  privileges  to  another  Power,  in 
the  countries  adjoining  Russia,  that  is  to  say,  in  Manchuria, 

"For  the  supposed  text  of  this  convention,  see  Asakawa,  pp.  174-76. 
For  the  various  Chinese  versions,  see  Blue  Book  on  China.  No.  2 
(1904),  Nos.  14,  25,  and  42. 


I 


22  THE    RUSSO-JAPANESE    WAR 

Mongolia,  Tarbogati,  Hi,  Kashgar,  Yarkond,  Khoten,  etc. 
China  shall  not  herself  construct  a  railway  in  those  countries 
without  Russia's  consent;"  (8)  that  no  leases  of  land  in 
Manchuria,  outside  of  Niu-chwang,  be  granted  to  the  sub- 
jects of  other  Powers.  The  last  four  articles  relate  to  the 
payment  of  the  Chinese  indemnity  due  to  Russia,  payment 
of  damages  for  destruction  of  railway  property,  etc.,  during 
the  Boxer  uprising,  the  whole  or  part  of  which  indemnities 
might  be  set  off  against  privileges  of  other  kinds. 

Upon  the  appeal  of  the  Emperor  of  China  to  the  Powers 
declaring  that  "it  was  impossible  for  China  alone  to  incur 
the  displeasure  of  Russia  by  remaining  firm,"  Great  Britain 
and  Japan  protested  vigorously  against  the  conclusion  of 
such  a  separate  agreement  with  Russia ;  "for  such  an  act 
was  contrary  to  the  principle  of  solidarity  which  then  united 
the  Powers,  and  an  individual  convention  with  a  Power 
would  materially  lessen  the  capacity  of  China  to  meet  her 
obligations  toward  all  the  Powers."^®  As  a  result  of  these 
protests,  China  refused  to  sign  the  convention  even  in  a  form 
somewhat  modified  in  her  favor;  and  on  April  6,  iQOi,  it 
was  officially  announced  in  Russia  that  owing  to  the  publica- 
tion in  the  foreign  Press  of  all  sorts  of  false  reports  of  the 
alleged  treaties  with  China,  and  owing  to  the  serious  ob- 
stacles that  had  apparently  been  put  in  the  way  of  China  as 
regards  the  conclusion  of  an  agreement  with  Russia  serving 
as  a  "starting  point"  toward  the  restoration  of  Manchuria  to 
China,  "it  had  been  found  impossible  immediately  to  take 
the  measures  contemplated  for  the  gradual  evacuation  of 
Manchuria."     The  negotiations  had  therefore  been  aban- 

^Asakawa,  p.  178.  Germany  suggested,  Great  Britain  and  Japan 
seconding  the  suggestion,  that  China  should  refer  the  matter  to  the 
Conference  of  the  representatives  then  in  session  at  Peking. 


THE    CAUSES    OF    THE    WAR  23 

doned.  "With  regard  to  the  question  of  the  complete  and 
final  restitution  of  this  territory  to  China,"  it  was  declared  : 
"it  is  evident  that  it  can  only  be  accomplished  after  a  normal 
state  of  affairs  has  been  reestablished  in  the  Chinese  Empire, 
and  a  Central  Government  has  been  secured  in  the  capital, 
independent  and  sufficiently  strong  to  guarantee  Russia 
against  the  renewal  of  the  disturbances  of  last  year.  While 
maintaining  the  present  temporary  form  of  government  in 
Manchuria,  with  the  object  of  insuring  order  in  the  neigh- 
borhood of  the  vast  Russian  frontier,  but  remaining  un- 
alterably true  to  their  original  programme,  as  repeatedly 
formulated,  the  Imperial  Government  will  quietly  await  the 
further  progress  of  events."'^ 

It  w-as  not  long,  however,  before  Russia  made  fresh  de- 
mands upon  China.  After  the  signing,  in  September,  1901, 
of  the  final  Peace  Protocol  between  China  and  the  Powers, 
Russia  appears  to  have  felt  herself  once  more  free  to  treat 
independently  with  China  concerning  the  settlement  of  the 
Manchurian  question.'^  A  new  Convention  of  Evacuation 
was  prepared  by  M.  Lessar,  the  new  Russian  Minister  at 
Peking,  early  in  October.  The  Russian  proposals,  which 
were  disclosed  to  Mr.  Conger,  the  American  ambassador  at 
Peking,  by  Prince  Ching  on  December  11.  1901."  were 
substantially  as   follows :     ( i )    Russia  agreed   to  evacuate 

"British  Blue  Book  on  China,  No.  2  (1904),  No.  37,  p.  23.  Cited  by 
Asakawa,  pp.  187-88.  The  extract  from  the  Russian  Official  Messenger 
of  April  6,  1905,  on  pp.  17-23  of  the  Blue  Book,  cited  above,  is  the  best 
and  most  comprehensive  statement  of  the  Russian  position  which  I  have 
seen. 

**  Russia  had  tried  to  treat  the  Manchurian  question  as  one  solely 
concerning  the  interests  of  China  and  Russia  from  the  beginning,  but 
the  other  Powers  had  refused  so  to  regard  it. 

"  U.  S.  House  Documents  of  the  57th  Congress,  2nd  session  (Foreign 
Relations,  1903),  pp.  271-72. 


24 


THE    RUSSO-JAPANESE    WAR 


Manchuria  in  three  years^°  if  "there  are  no  repetitions  of 
disorder,  and  the  conduct  of  other  nations  does  not  hamper" ; 
(2)  that  the  Agreement  of  April,  1899,  with  the  Russo- 
Chinese  Bank  be  adhered  to;  (3)  that  China  undertake  to 
protect  the  railways  and  Russian  subjects  in  Manchuria,  for 
which  purpose  mounted  and  foot  soldiers  (the  numbers  to 
be  determined  by  agreement  with  Russia)  might  be  sta- 
tioned in  lands  other  than  those  assigned  to  the  Railway 
Company,  provided  that  the  use  of  artillery  be  excluded  and 
that  the  troops  of  no  other  nationality  be  employed;  (4) 
that  subjects  of  no  other  nationality  be  permitted  without 
the  consent  of  Russia  to  build  railways  or  bridges  in  South- 
ern Manchuria. 

In  addition  to  the  above  proposed  convention,  the  Russian 
Government  insisted,  in  January,  1902,  that  China  sign  a 
separate  agreement  prepared  by  the  Russo-Chinese  Bank, 
which  provided  that  China  should  herself  undertake  all  in- 
dustrial development  in  Manchuria.  If,  however,  she 
needed  financial  aid,  application  should  always  be  made,  in 
the  first  instance,  to  the  Russo-Chinese  Bank ;  and  only  when 
the  latter  did  not  wish  to  give  such  aid  might  citizens  of 
other  countries  be  permitted  to  undertake  such  work.*^ 
Great  Britain,  Japan,*^  and  the  United  States  protested 
against  these  demands,  Secretary  Hay  reminding  the  Rus- 
sian and  Chinese  Governments,  in  February,  1902,  of  the 
repeated  assurances  made  by  Count  Lamsdorff  in  favor  of 
the  principle  of  the  open  door  in  all  parts  of  China.  He 
said,  among  other  things :    "An  agreement  whereby  China 

**'This  term  was  afterwards  reduced  to  two  years. 

"  U.  S.  House  Doc.  of  57th  Congress,  2nd  session,  op.  cit.,  pp.  273-74. 

*^At  least  it  is  highly  probable  that  Great  Britain  and  Japan  pro- 
tested, though  these  protests  do  not  appear  in  the  published  documents. 
See  Asakawa,  pp.  193-94. 


THE    CAUSES    OF    THE    WAR  2$ 

gives  any  corporation  or  company  the  exclusive  right  or 
privilege  of  opening  mines,  establishing  railroads,  or  in  any 
other  way  industrially  developing  Manchuria,  can  but  be 
viewed  with  the  greatest  concern  by  the  Government  of  the 
United  States.  It  constitutes  a  monopoly,  which  is  a  dis- 
tinct breach  of  the  stipulations  of  the  treaties  concluded 
between  China  and  foreign  Powers,  and  thereby  seriously 
affects  the  rights  of  American  citizens."*^ 

In  reply  to  this  note  Count  Lamsdorff  reminded  Secretary 
Hay  of  the  fact  that  ''negotiations  carried  on  between  two 
entirely  independent  states  are  not  subject  to  be  submitted  to 
the  approval  of  other  Powers."'  He  gave  assurances  that 
Russia  had  "no  thought  of  attacking  the  principle  of  the 
'open  door'  as  that  principle  is  understood  by  the  Imperial 
Government  of  Russia,"  and  that  Russia  had  "no  intention 
whatever  to  change  the  policy  followed  by  her  in  that  re- 
spect up  to  the  present  time.  If  the  Russo-Chinese  Bank 
should  obtain  concessions  in  China,  the  agreements  of  a 
private  character  relating  to  them  would  not  differ  from 
those  heretofore  concluded  by  so  many  other  foreigii  cor- 
porations. .  .  .  It  is  impossible  to  deny  to  an  independent 
state  the  right  to  grant  to  others  such  concessions  as  it  is 
free  to  dispose  of,  and  I  have  every  reason  to  believe  that 
the  demands  of  the  Russo-Chinese  Bank  do  not  in  the  least 
exceed  those  that  have  been  so  often  fonnulated  by  other 
foreign  companies,  and  I  feel  that  under  the  circumstances 
it  would  not  be  easy  for  the  Imperial  (lovcrnnicnt  to  deny 
to  the  Russian  companies  that  support  which  is  given  by 
other  Governments  to  companies  and  syndicates  of  their 
own  nationalities."** 

"U.  S.  House  Doc.  57th  Congress,  2nd  session,  Vol.   I.  pp.  275-76, 
and  pp.  926-28. 
**Ibid.,  p.  929. 


26  THE    RUSSO-JAPANESE    WAR 

In  Spite  of  the  firm  tone  of  this  note,  Russia  appears  to 
have  ceased  to  press  China  for  her  acceptance  of  these  pro- 
posals, China  (supported  by  the  protests  of  Great  Britain, 
Japan,  and  the  United  States)  probably  refusing  to  sign. 
It  was  now  the  turn  of  China  to  make  counter-proposals, 
which  were  promptly  accepted  by  Russia.  This  sudden 
change  of  attitude  on  the  part  of  Russia  was  probably  due 
to  the  conclusion  of  the  Anglo-Japanese  Agreement  signed 
at  London  on  January  30,  1902,  and  simultaneously  an- 
nounced in  the  British  Parliament  and  at  Tokio  on  February 
12.  This  agreement,  which  was  in  the  nature  of  a  defensive 
alliance,  was  so  important  in  strengthening  the  hands  of 
Japan  and  Great  Britain  in  dealing  with  Russia  and  China 
that  it  merits  citation  in  full : 

"The  Governments  of  Great  Britain  and  Japan,  actuated 
solely  by  a  desire  to  maintain  the  status  quo  and  general  peace 
in  the  extreme  East,  being  moreover  specially  interested  in 
maintaining  the  independence  and  territorial  integrity  of  the 
Empire  of  China  and  the  Empire  of  Korea,  and  in  securing 
equal  opportunities  in  those  countries  for  the  commerce  and 
industry  of  all  nations,  hereby  agree  as  follows : 

"Article  I.  The  High  Contracting  Parties  having  mutually 
recognized  the  independence  of  China  and  Korea,  declare  them- 
selves to  be  entirely  uninfluenced  by  any  aggressive  tendencies 
in  either  country.  Having  in  view,  however,  their  special  in- 
terests, of  which  those  of  Great  Britain  relate  principally  to 
China,  while  Japan,  in  addition  to  the  interests  which  she  pos- 
sesses in  China,  is  interested  in  a  peculiar  degree,  politically 
as  well  as  commercially  and  industrially,  in  Korea,  the  High 
Contracting  Parties  recognize  that  it  will  be  admissible  for 
either  of  them  to  take  such  measures  as  may  be  indispensable 
in  order  to  safeguard  those  interests  if  threatened  by  the  ag- 
gressive action  of  any  other  Power,  or  by  disturbances  arising 
in  China  or  Korea,  and  necessitating  the  intervention  of  either 


THE    CAUSES    OF    THE    WAR  2/ 

of  the  High  Contracting  Parties  for  the  protection  of  the  hves 
and  property  of  its  subjects. 

"Art.  II.  If  either  Great  Britain  or  Japan,  in  the  defense  of 
their  respective  interests  as  above  described,  should  become  in- 
volved in  war  with  another  Power,  the  other  High  Contracting 
Party  will  maintain  a  strict  neutrality,  and  use  its  efforts  to 
prevent  other  Powers  from  joining  in  hostilities  against  its  ally. 

"Art.  III.  If,  in  the  above  event,  any  other  Power  or  Powers 
should  join  in  hostilities  against  that  ally,  the  other  High  Con- 
tracting Party  will  come  to  its  assistance,  and  will  conduct  war 
in  common,  and  will  make  peace  in  mutual  agreement  with  it. 

"Art.  IV.  The  High  Contracting  Parties  agree  that  neither 
of  them  will,  without  consulting  the  other,  enter  into  separate 
agreements  with  another  Power  to  the  prejudice  of  the  inter- 
ests above  described. 

"Art.  V.  Whenever,  in  the  opinion  of  either  Great  Britain 
or  Japan,  the  above  mentioned  interests  are  in  jeopardy,  the 
two  Governments  will  communicate  with  one  another  fully  and 
frankly. 

"Art.  VI.  The  present  Agreement  shall  come  into  effect  im- 
mediately after  the  date  of  signature,  and  remain  in  force  for 
five  years  after  that  date. 

"In  case  neither  of  the  High  Contracting  Parties  should  have 
notified  twelve  months  before  the  expiration  of  the  said  five 
years  the  intention  of  terminating  it,  it  shall  remain  binding 
until  the  expiration  of  one  year  from  the  day  on  which  either  of 
the  High  Contracting  Parties  shall  have  denounced  it.  But  if, 
when  the  date  fixed  for  its  expiration  arrives,  either  ally  is 
actually  engaged  in  war,  the  alliance  shall,  ipso  facto,  continue 
until  peace  is  concluded."*^ 

A  communication,  bearing  the  same  date,  from  Lord 
Lansdowne  to  Sir  Claude  MacDonald,  the  British  Minister 
at  Tokio,  stated  that  "this  agreement  may  be  regarded  as 

"The  British  Parliamentary  Fathers,  Treaty  Series,  No.  3.  1902.  Re- 
printed by  Asakawa,  pp.  202-204.  and  Beveridge,  Appendix,  pp.  482-83. 


28  THE    RUSSO-JAPANESE    WAR 

the  outcome  of  the  events  which  have  taken  place  during  the 
past  two  years  in  the  Far  East,"  and  that  the  Far  Eastern 
policies  of  England  and  Japan  were  identical ;  both  of  them 
desiring  that  "the  integrity  and  independence  of  the  Chinese 
Empire  should  be  preserved,  that  there  be  no  disturbance  of 
the  territorial  status  quo  either  in  China  or  the  adjoining 
regions,  that  all  nations  should,  within  those  regions,  as  well 
as  within  the  limits  of  the  Chinese  Empire,  be  afforded  equal 
opportunities  for  the  development  of  their  commerce  and 
industry,  and  that  peace  should  not  only  be  restored,  but 
should,  for  the  future,  be  maintained."*® 

The  publication  of  this  treaty  was  followed  on  March  17, 
1902,  by  the  following  declaration  on  the  part  of  Russia 
and  France : 

"The  allied  Governments  of  Russia  and  France  have  received 
a  copy  of  the  Anglo-Japanese  Agreement  of  the  30th  January, 
1902,  concluded  with  the  object  of  maintaining  the  status  quo 
and  general  peace  in  the  Far  East,  and  preserving  the  inde- 
pendence of  China  and  Korea,  which  are  to  remain  open  to  the 
commerce  and  industry  of  all  nations,  and  have  been  fully  satis- 
fied to  find  therein  affirmed  the  fundamental  principles  which 
they  have  themselves,  on  several  occasions,  declared  to  form 
the  basis  of  their  policy,  and  still  remain  so. 

"The  two  Governments  consider  that  the  observance  of  these 
principles  is  at  the  same  time  a  guarantee  of  their  special  inter- 
ests in  the  Far  East.  Nevertheless,  being  obliged  themselves 
also  to  take  into  consideration  the  case  in  which  the  aggressive 
action  of  third  Powers,  or  the  recurrence  of  disturbances  in 
China,  jeopardizing  the  integrity  and  free  development  of  that 

^^  The  British  Parliamentary  Papers,  Japan,  No.  i  (1902).  Reprinted 
by  Asakawa,  pp.  205-07. 

In  reply  to  questions  in  the  British  Parliament  on  February  12,  1902, 
Lords  Lansdowne  and  Cranbome  both  affirmed  that  the  Anglo-Japanese 
Alliance  applied  to  Manchuria  as  well  as  to  any  other  province  of  the 
Chinese  Empire. 


THE    CAUSES    OF    THE    WAR  29 

Power,  might  become  a  menace  to  their  interests,  the  two  al- 
lied Governments  reserve  to  themselves  the  right  to  consult  in 
that  contingency  as  to  the  means  to  be  adopted  for  securing 
those  interests."*^ 

On  April  8,  1902,  Russia  accepted  the  counter-proposals 
of  Prince  Ching,  referred  to  above,  and  concluded  with 
China  the  famous  Convention  providing  for  the  gradual 
evacuation  of  the  whole  of  Manchuria  within  eighteen 
months  from  the  date  of  signature.  By  the  terms  of  this 
agreement,  the  Czar  agreed  to  the  "reestablishment  of  the 
authority  of  the  Chinese  Government  in  that  region  ( Man- 
churia), w^hich  remains  an  integral  part  of  the  Chinese  Em- 
pire," and  restored  "to  the  Chinese  Government  the  right  to 
exercise  therein  governmental  and  administrative  authority, 
as  it  existed  previous  to  the  occupation  by  Russian  troops" 
on  the  following  conditions  :  ( i )  that  the  Chinese  Govern- 
ment "observe  strictly  the  stipulations  of  the  contract  con- 
cluded with  the  Russo-Chinese  Bank  on  the  27th  August. 
1896,  and  in  virtue  of  paragraph  5  of  the  above  mentioned 

"Blue  Book  on  China,  No.  2  (1904),  No.  50.  Reprinted  by  Asakawa. 
pp.  209-10. 

The  St.  Petersburg  Official  Messenger  declared  on  March  20  that  the 
Russian  Government  had  received  the  announcement  of  the  Anglo- 
Japanese  Agreement  "with  the  most  perfect  calm,"  inasmuch  as  Russia 
likewise  desired  "the  preservation  of  the  status  quo  and  general  peace 
in  the  Far  East"  and  was  also  in  favor  of  maintaining  the  integrity  of 
China  and  Korea.  It  declared  that  "the  intention  expressed  by  Great 
Britain  and  Japan  to  attain  those  same  objects,  which  have  invariably 
been  pursued  by  the  Russian  Government,  can  meet  with  nothing  but 
sympathy  in  Russia,  in  spite  of  the  comments  in  certain  political  spheres 
and  in  some  of  the  foreign  newspapers,  which  endeavored  to  present 
in  quite  a  different  light  the  impassive  attitude  of  the  Imperial  Govern- 
ment toward  a  diplomatic  act  which,  in  its  eye,  docs  not  cliangc  in  any 
tvay  the  general  situation  of  the  political  horizon."  Cited  l\v  Asakawa. 
p.  211.    The  italics  arc  the  author's. 


30  THE    RUSSO-JAPANESE    WAR 

contract,*^  assume  the  obligation  to  use  all  means  to  protect 
the  railway  and  the  persons  in  its  employ,  and  bind  itself  to 
secure,  within  the  boundaries  of  Manchuria,  the  safety  of 
all  Russian  subjects  in  general  and  of  all  undertakings  estab- 
lished by  them." 

"The  Russian  Government,  in  view  of  these  obligations 
assumed  by  the  Government  of  His  Majesty,  the  Emperor 
of  China,  agrees  on  its  side,  provided  that  no  disturbances 
arise  and  that  the  action  of  other  Pozvers  furnish  no  ob- 
stacle*^ to  withdraw  gradually  all  its  forces  from  within  the 
limits  of  Manchuria  and  in  the  following  manner:  (a) 
within  six  months  from  the  signature  of  the  agreement  to 
clear  the  southwestern  portion  of  the  province  of  Mukden 
up  to  the  Liao  River  of  Russian  troops,  and  to  hand  over 
the  railways  to  China;  (b)  within  the  following  six  months 
to  clear  the  remainder  of  the  province  of  Mukden  and  the 
province  of  Kirin  of  Imperial  troops;  (c)  within  the  six 
months  following  to  withdraw  the  remaining  Imperial  Rus- 
sian troops  from  the  province  of  Hei-lung-chang.  (Arti- 
cle II.) 

''In  view  of  the  necessity  of  preventing  in  the  future  any 
recurrence  of  the  disorders  of  last  year,  in  which  Chinese 
troops  stationed  on  the  Manchurian  frontier  also  took  part, 
the  Imperial  Russian  and  Chinese  Governments  shall  under- 
take to  instruct  the  Russian  military  authorities  and  the 
Tsiang-Tsungs  (local  Governors),  mutually  to  come  to  an 
agreement  respecting  the  members  and  the  disposition  of 
the  Chinese  forces  until  the  Russian  forces  shall  have  been 
withdrawn.     At   the   same   time   the   Chinese   Government 

**"  This    paragraph    imposed   upon    China   the    duty   of   protecting   the 
Manchurian  Railway  and  its  employees. 
^*  The  italics  are  the  author's. 


THE    CAUSES    OF    THE    WAR  3 1 

binds  itself  to  organize  no  other  forces  over  and  above  those 
decided  upon  by  the  Russian  mihtary  authorities  and  the 
Tsiang-Tsungs  as  sufficient  to  suppress  brigandage  and 
pacify  the  country.  After  the  complete  evacuation  of  Man- 
churia by  Russian  troops,  the  Chinese  Government  shall 
have  the  right  to  increase  or  diminish  the  number  of  its 
troops  in  Manchuria,  but  of  this  it  must  duly  notify  the 
Russian  Government.  .  .  .  "For  police  service  and  main- 
tenance of  internal  order  in  the  districts  outside  those  parts 
alotted  to  the  Eastern  Chinese  Railway  Company,  a  police 
guard,  under  the  local  Governors  (Tsiang-Tsungs),  con- 
sisting of  cavalry  and  infantry,  shall  be  organized  exclu- 
sively of  subjects  of  His  Majesty  the  Emperor  of  China.'" 
(Article  III.) 

In  view  of  the  restoration  by  the  Russian  Government  to 
its  owners  of  the  Shan-hai-kwan — Niu-chwang-Siumin-ting 
Railway,  which,  since  the  end  of  September,  1900.  had  been 
occupied  and  guarded  by  Russian  troops,  the  Chinese  Gov- 
ernment bound  itself:  (a)  not  to  invite  other  Powers  to 
participate  in  the  protection,  construction,  or  working  of 
this  railway,  "nor  to  allow  other  Powers  to  occupy  the  ter- 
ritory evacuated  by  the  Russians";  (b)  to  conduct  the  com- 
pletion and  working  of  said  line  in  strict  accordance  with 
the  Agreement  between  Russia  and  England  of  April  16, 
1899,  and  to  observe  the  contract  respecting  the  loan  for 
its  construction;  (c)  "should,  in  the  course  of  time,  ex- 
tensions of  the  line  in  Southern  Manchuria,  or  construc- 
tions of  branch  lines  in  connection  with  it.  or  the  erection  of 
a  l)ri(lge  in  Xiu-chwang.  or  the  nio\-ing  of  the  terminus 
there,  be  undertaken,  these  questions  shall  first  form  the 
subject  of  mutual  discussion  between  the  Russian  and  Chi- 
nese Governments":    (d)    the  Chinese  Government   recog- 


22  THE    RUSSO-JAPANESE    WAR 

nized  its  liability  for  the  expenses  incurred  by  the  Russian 
Government  in  repairing  and  working  the  said  line  during 
the  period  of  its  occupation.      (Article  IV. )^'' 

At  the  same  time,  M.  Lessar  handed  a  note  to  the  Chinese 
Plenipotentiaries  which  declared,  in  the  name  of  the  Russian 
Government,  that  the  surrender  of  the  civil  government  of 
Niu-chwang  into  the  hands  of  the  Chinese  would  take  place 
only  after  the  withdrawal  from  that  port  of  the  foreign 
forces  and  landing  parties  and  the  restoration  to  the  Chinese 
of  the  town  of  Tien-tsin,  then  under  international  adminis- 
tration. He  also  declared  that  'Hf  the  Chinese  Government, 
in  spite  of  their  positive  assurances,  sJiould,  on  any  pretext, 
violate  the  above  conditions,  the  Imperial  Government  (of 
Russia)  zvoidd  no  longer  consider  itself  hound  by  the  pro- 
visions of  the  Manchuriait  Agreement,  nor  by  its  declara- 
tions on  this  subject,  and  zvould  have  to  take  all  responsibil- 
ity for  all  consequences  which  might  ensue. "'^'^ 

It  will  be  seen  that  even  the  comparatively  mild  conditions 
imposed  upon  China  (at  her  own  suggestion,  it  is  true)  by 
this  Convention  were  very  difficult,  if  not  impossible,  to 
fulfill.  China  was  to  be  held  responsible  for  the  security  of 
all  Russians  and  their  enterprises  in  Manchuria,  but  Russia 
was  practically  to  determine  the  number  of  troops  which 
would  be  required  for  this  purpose.  The  inevitable  failure 
of  China  to  suppress  internal  disorder  or  prevent  the  incur- 
sions and  depredations  of  the  Chunchuses  or  mounted  ban- 
dits of  Manchuria  and  Mongolia,  might  at  any  time  be  made 

°°  For  a  French  text  of  this  convention,  see  Blue  Book  on  China, 
No.  2  (1904),  No.  54.  Reprinted  by  Asakawa,  pp.  215-218.  For  an 
English  version,  see  Blue  Book,  op.  cit.,  No.  51,  and  Asakawa,  pp. 
220-24. 

^^  China,  No.  2  (1904),  p.  38.  Cited  by  Asakawa,  pp.  224-25.  The 
italics  are  the  author's. 


THE    CAUSES    OF    THE    WAR  33 

a  pretext  for  the  refusal  of  Russia  to  withdraw  her  trooi>s 
from  these  provinces.  Besides,  it  would  always  be  open  to 
Russia  to  allege  that  the  action  of  some  other  Power  or 
Powers  in  China  constituted  a  sufficient  bar  to  such  with- 
drawal. The  right  of  Russia  to  continue  to  police  the  Man- 
churian  railway  by  means  of  the  so-called  "railway"  or 
"frontier  guards"  seems  to  have  been  tacitly  permitted. 

Inasmuch  as  the  Convention  of  Evacuation  made  no  pro- 
vision for  the  exclusive  control  of  mining  and  railway  enter- 
prises in  Manchuria  by  Russian  subjects,  no  objection  was 
raised  by  any  of  the  Powers;  for  "they  probably  preferred 
the  imperfect  obligation  the  Convention  imposed  upon  the 
contracting  parties,  to  an  indefinite  prolongation  of  the  dan- 
gerous conditions  which  had  prevailed.  What  remained 
for  them  and  for  China  was  to  watch  the  conduct  of  Russia 
in  Manchuria  and  test  her  veracity  according  to  their  own 
interpretations  of  the  Agreement. "'^^ 

By  October  8,  1902,  at  the  end  of  the  first  six  months, 
Russia  had  handed  over  the  Chinese  Railway  to  the  Chinese 
Government  and  withdrawn  her  troops  from  the  southwest- 
ern portion  of  the  Sheng-king  or  Mukden  province  as  far 
as  the  Liao  River ;  but  a  considerable  number  of  these  troops 
appear  to  have  been  simply  transferred  to  other  parts  of 
Manchuria,  where  they  were  transformed  into  railway 
guards."'  The  evacuation  of  Niu-chwang  was  delayed, 
however,  for  trivial  reasons,  in  spite  of  the  fact  that  the  con- 
ditions named  by  M.  Lessar  in  his  note  of  April,  1901,  had 
been  met ;  and  this  important  treaty-port  remained  in  the 

"Asakawa,  p.  233. 

"  See  especially  Dr.  Morrison's  articles  in  the  London  Times  for  Jan- 
uary 3  and  14,  1903.  See  also  Blue  Book  on  China,  No.  2  (1904),  Nos. 
56,  58,  60  ff.,  and  U.  S.  House  Doc,  57th  Congress,  2nd  session  (For. 
Rcl.),  pp.  281  ff. 


34  THE    RUSSO-JAPANESE    WAR 

possession  of  the  Russians  until  they  were  driven  out  by  the 
Japanese  during  the  early  months  of  the  war. 

By  April  8,  1903,  the  date  set  for  the  evacuation  of  the 
remainder  of  the  province  of  Mukden  and  of  the  province 
of  Kirin,  it  had  become  evident  from  the  disposition  of  the 
Russian  forces  in  Manchuria  that  not  even  a  nominal  with- 
drawal was  intended.^*  It  was  even  reported  early  in  May, 
1903,  that  a  number  of  Russian  soldiers  in  civilian  dress 
had  advanced  across  the  Yalu  River  into  Korea  and  were 
cutting  timber  at  Yong-am-po.  In  the  meantime  (early  in 
April)  Russia  had  made  seven  new  demands  upon  China, 
upon  the  acceptance  of  which  the  further  evacuation  of 
Manchuria  appears  to  have  been  practically  conditional. 
These  demands,  which  were  rejected  by  China,  appear  to 
have  been  substantially  as  follows :^^  (i)  that  "no  portion 
of  territory  restored  to  China  by  Russia,  especially  at  Niu- 
chwang  and  in  the  valley  of  the  Liao-ho,  shall  be  leased  or 
sold  to  any  other  Power  under  any  circumstances;"  (2)  that 
the  status  quo  be  maintained  in  Mongolia;  (3)  that  "China 
shall  engage  herself  not  to  open,  of  her  own  accord,  new 

"U.  S.  House  Doc.  of  58th  Congress,  2nd  session,  Vol.  I  (For.  Rel.), 
1903-4,  p.  53.  It  appears  that  some  pretense  of  evacuation  was  made  in 
the  Sheng-king  province  where  some  Russian  troops  were  withdrawn 
to  the  railway  line.  Asakawa,  p.  239.  At  Mukden  there  was  a  sham 
evacuation. 

"  For  the  most  authentic  text  of  these  demands  obtainable  by  Eng- 
land, see  Blue  Book  on  China,  op.  cit.,  No.  94.  For  the  original  Russian 
note  sent  by  M.  de  Plancon  to  Prince  Ching,  see  U.  S.  House  Doc.  of 
58th  Congress,  2nd  session  (For.  Rel.),  pp.  56-58.  See  also  Asakawa, 
pp.  242-44.  In  his  interview  of  April  28,  1903,  with  Mr.  McCormick,  the 
American  ambassador  at  St.  Petersburg,  Count  Lamsdorfif  denied  in 
the  most  positive  manner  that  such  demands  were  made  by  the  Rus- 
sian Government ;  but  the  denial  of  Count  Lamsdorff  was  partly  offset 
by  the  admissions  made  by  Count  Cassini  in  his  remarkable  interview 
which  appeared  in  the  New  York  Tribune  for  May  i,  1903.  Cited  by 
Asakawa,  p.  249. 


THE    CAUSES    OF    THE    WAR  35 

ports  or  towns  in  Manchuria,  without  giving  previous  notice 
to  the  Russian  Government,  nor  shall  she  permit  foreign 
consuls  to  reside  in  these  towns  or  ports;"  (4)  that  "the 
authority  of  foreigners,  who  may  be  engaged  by  China  for 
the  administration  of  any  affairs  whatever,  shall  not  be  per- 
mitted to  extend  over  any  afTairs  in  the  Northern  Provinces 
(including  Chili)  where  Russia  has  the  predominant  in- 
terests. In  case  China  desires  to  engage  foreigners  for  the 
administration  of  affairs  in  the  Northen  Provinces,  special 
ofBces  shall  be  established  for  the  control  of  Russians :  for 
instance,  no  authority  over  the  mining  afTairs  of  Mongolia 
and  Manchuria  shall  be  given  to  foreigners  who  may  be  en- 
gaged by  China  for  the  administration  of  mining  affairs ; 
such  authority  shall  be  left  entirely  in  the  hands  of  Russian 
experts";  (6)  that  the  custom  receipts  of  Niu-chvvang  shall 
continue  to  be  de^xDsited  with  the  Russo-Chinese  Bank  after 
the  restoration  of  that  port  to  the  Chinese  local  authorities ; 
(7)  that  the  rights  acquired  in  Manchuria  by  Russian  sub- 
jects and  foreign  corporations  during  the  Russian  occupa- 
tion shall  remain  unaffected  after  the  evacuation. ^° 

It  will  be  seen  that  these  demands  included  string-ent 
measures  for  closing  Manchuria  against  the  economic  enter- 
prises of  all  foreigners  except  Russians,  and  that  they  prac- 
tically forbade  the  opening  of  new  treaty-ports  in  Manchuria 
without  the  consent  of  Russia.  They  were,  therefore,  in 
direct  opiK)sition  to  the  principle  of  the  oix?n  door,  and  it  is 
not  in  the  least  suri)rising  tiiat  their  publication  was  followed 

"This  article  also  contained  provision  for  the  establishment  of  a  quar- 
antine office  and  a  permanent  Sanitary  Board  at  Niu-chwang,  after  its 
restoration  to  China.  Article  5  (omitted  in  the  text)  provided  for  the 
retention  by  Russia  of  the  control  of  the  telegraph  line  between  Port 
Arthur  and  Mukden. 


36  THE    RUSSO-JAPANESE    WAR 

by  firm  protests  at  Peking  on  the  part  of  Japan,  Great  Brit- 
ain, and  the  United  States. 

October  8,  1903,  the  date  set  for  the  final  evacuation  of 
the  province  of  Hei-lung-chang,  arrived  and  the  Russians 
were  still  in  possession  of  practically  the  whole  of  Man- 
churia with  the  exception  of  the  region  west  of  the  Liao 
River.  They  still  retained  control  of  Niu-chwang,  and  by 
the  end  of  October"  they  had  actually  reoccupied  Mukden. ^^ 
Although  there  had  been  no  serious  disturbances  in  Man- 
churia, and  although  Russia  did  not  even  allege  that  any  of 
the  Powers  had  placed  obstacles  in  the  way  of  such  with- 
drawal, there  was  no  further  attempt  to  carry  out  the  pro- 
visions of  the  Convention  of  Evacuation,  and  it  became  in- 
creasingly evident  that  Russia  intended  to  remain  in  Man- 
churia and  absorb  that  vast  and  productive  region  politically 
as  well  as  exploit  it  economically. 

The  aggressive  and  exclusive  policy  of  Russia  in  Man- 
churia— dangerous  as  this  policy  was  to  the  interests  of 
Japan  and  other  Powers  in  China — might  perhaps  have  been 
tolerated  by  Japan  had  it  not  been  for  clear  indications  of  an 
intention  on  the  part  of  Russia  to  make  similar  encroach- 
ments in  Korea,  long  since  regarded  by  the  Japanese  as 

'^  On  September  6,  1903,  six  fresh  demands  were  made  by  Russia  on 
China.  See  Blue  Book,  op.  cit.,  Nos.  147  ff.,  especially  No.  156.  The 
most  important  of  these  demands  appear  to  have  been  that  "China  shall 
undertake  not  to  alienate  any  part  of  Manchuria  to  another  Power, 
nor  to  grant  land  for  the  purpose  of  foreign  settlements,"  and  that 
"no  greater  duties  be  imposed  on  goods  brought  into  Manchuria  by  rail 
than  those  now  imposed  on  goods  transported  by  road  or  river."  These 
demands  were  rejected  by  the  Chinese  Government  at  the  instigation 
of  the  British  and  Japanese  Ministers  at  Peking. 

**  This  re-occupation  of  Mukden  by  Russian  troops,  although  unim- 
portant in  itself  (Mukden  having  never  been  really  evacuated),  is  said 
to  have  greatly  excited  public  feeling  in  Japan  against  Russia. 


I 


THE    CAUSES    OF    THE    WAR  37 

within  the  sphere  of  their  special  or  predominant  interests. 
The  peninsula  of  Korea,  although  geographically  and  his- 
torically connected  with  the  Manchurian  Hinterland,  faces 
Japan,  as  a  Japanese  statesman  has  graphically  sadd,  "like  an 
arrow  with  the  point  aimed  at  her  heart." 

Lying  at  the  very  door  of  Japan  and  separated  from  her 
only  by  the  Korean  Straits,  ^^  Korea  has  at  intervals  been  an 
object  of  interest  or  ambition  on  the  part  of  the  Japanese 
ever  since  the  invasion  and  temporary  subjugation  of  south- 
eastern Korea  (Shinra)  by  the  Empress  Jingu  at  the  begin- 
ning of  the  third  century,  a.  d.  (201-203?).  From  that 
day  to  the  year  1876,  when  Japan  signed  a  treaty  recogniz- 
ing the  independence  of  Korea — an  acknowledgment  which 
led  to  the  great  Satsuma  rebellion  against  the  Japanese  Gov- 
ernment in  1877 — Korea*'"  was  regarded  by  the  Japanese  as 
a  tributary  or  vassal  state.  A  similar  claim  of  suzerainty 
was  made  by  the  Chinese  and  acknowledged  by  the  Ko- 
reans,®^ so  that,  during  a  considerable  part  of  this  period  at 
least,   we   have  the  curious   spectacle   of   a   people  paying 

■^The  Japanese  islands  of  Tsushima,  from  which  the  Japanese  main- 
land is  visible,  are  only  fifty  miles  distant  from  the  magnificent  harbor 
of  Masampo  on  the  southern  coast  of  Korea. 

""  This  is  at  least  true  of  Shinra  or  southeastern  Korea.  The  Koreans 
did  not  form  a  united  state  before  934  a.  d. 

"  The  Chinese  claim  to  Korea  is  much  older  than  the  Japanese.  It 
goes  back  to  the  year  1122  b.  c.^  but  the  first  real  conquest  of  "Korai" 
(northern  Korea)  by  China  dates  from  the  middle  of  the  seventh  cen- 
tury, A.  D.  (664).  The  claims  of  Japan  have,  therefore,  a  better  his- 
torical basis  than  those  of  China.  Besides,  the  attitude  of  China  toward 
the  Koreans  has  always  been  that  of  a  patron  rather  than  a  master. 
As  a  rule,  China  has  claimed  neither  the  right  of  regulating  their  in- 
ternal affairs  nor  of  meddling  in  matters  of  foreign  policy.  She  has  at 
times  even  gone  to  the  extent  of  disclaiming  responsibility  for  Korea's 
misdeeds  and  of  disavowing  any  active  political  interest  in  the  penin- 
sula. 


38  THE    RUSSO-JAPANESE    WAR 

tribute  to  two  suzerains  and  acknowledging  the  overlordship 
of  both. 

The  relations  between  Japan  and  Korea  appear  to  have 
been  particularly  close  and  active  from  the  third  to  th.e 
thirteenth  centuries,  a.  d.  There  were  frequent  tribute  mis- 
sions, and  a  steady  stream  of  commerce  and  immigration 
flowed  from  the  peninsula  into  the  archipelago.  Japan 
profited  immeasurably  by  this  intercourse,  so  much  so  that, 
as  Griffis^^  says  :  "It  must  never  be  forgotten  that  Korea  was 
not  only  the  bridge  on  which  civilization  crossed  from  China 
to  the  archipelago,  but  was  most  probably  the  pathway  of 
migration  by  which  the  rulers  of  the  new  race  now  inhab- 
iting Nippon  reached  it  from  the  ancestral  seats  around  the 
Sungari  and  the  Ever- White  Mountains.  True,  it  is  not 
absolutely  certain  whether  the  homeland  of  the  Mikado's 
ancestors  lay  southward  in  the  sea,  or  westward  among  the 
mountains,  but  that  the  mass  of  the  Korean  and  Japanese 
people  are  more  closely  allied  in  blood  than  either  are  the 
Chinese,  Manchus,  or  Malays  seems  to  be  proved,  not  only 
by  language  and  physical  traits,  but  by  the  whole  course  of 
the  history  of  both  nations,  and  by  the  testimony  of  Chinese 
records.  Both  Koreans  and  Japanese  have  inherited  the 
peculiar  institutions  of  their  Fuyu  ancestors — that  race 
which  alone  of  all  the  peoples  sprung  from  Manchuria,  mi- 
grated toward  the  rising,  instead  of  the  setting  sun." 

In  the  early  part  of  the  thirteenth  century  China  and 
Korea  were  conquered  by  the  Mongols  under  Genghis  Khan, 
and  it  was  from  Korea  that  his  grandson  Khublai  Khan 
dispatched  his  ill-fated  expedition  for  the  conquest  of  Japan 
in  1 28 1.  The  Mongol  conquest  of  Korea  seems  to  mark 
the  definite  ascendency  of  Chinese  influence  in  the  peninsula 

^'  Corea,  The  Hermit  Nation  (7th  ed.),  pp.  61-62. 


THE    CAUSES    OF    THE    WAR  39 

— an  influence  which  appears  to  have  been  increased  rather 
than  diminished  by  the  fall  of  the  Mongols  and  the  estab- 
lishment of  the  native  Ming  dynasty  on  the  throne  of  China 
in  the  middle  of  the  fourteenth  century  (i  341 -1368). 

The  Japanese  had  been  neglecting  foreign  affairs  for  sev- 
eral centuries,  and  it  was  partly  in  order  to  recover  lost 
ground  in  Korea  that  Hideyoshi''^  invaded  the  peninsula  in 
1592.  The  six  years  of  slaughter  and  devastation  in  Korea 
which  followed  left  Japan  in  possession  of  the  islands  of 
Tsushima  in  the  Korean  Strait  and  gave  her  a  bare  foothold 
on  the  mainland  at  Fusan  (a  position  which  Japan  retained 
until  1876),  but  it  left  behind  it  a  legacy  of  hatred  for  Japan 
in  Korea — a  hatred  from  which  the  Japanese  suffer  to  this 
day. 

After  the  invasion  of  Hideyoshi,  which  had  been  resisted 
with  the  aid  of  China,  the  ascendency  of  Chinese  interests 
and  influence  in  Korea  became  more  pronounced  than  before, 
although  Japan  still  retained  sufficient  influence  to  insist 
upon  the  annual  tribute  missions — embassies  which  were 
really  sent  at  the  expense  of  the  Japanese — during  the  seven- 
teenth and  eighteenth  centuries.  During  this  period  the 
suzerainty  of  Japan  w^as  merely  nominal,  while  that  of  China 
was  more  or  less  real,®*  and  the  tribute  missions  to  Japan 
ceased  altogether  after  the  first  decade  of  the  nineteenth 
century. 

•"This  would-be  conqueror  also  aimed  at  the  conquest  of  China,  to 
which  that  of  Korea  was  to  be  merely  a  prelude.  For  good  accounts  of 
the  invasion  of  Hideyoshi,  see  Griffis,  ch.  13,  and  Hishida,  Japan  as 
a  Great  Power,  in  the  Columbia  University  Studies  in  History,  etc., 
Vol.  XXIV,  pp.  302-310. 

•^In  the  seventeenth  century  Korea  succumbed  to  the  Manchus  like 
the  rest  of  China.  The  bonds  of  vassalage  between  China  and  Korea 
seem,  indeed,  to  have  been  drawn  tighter  by  the  Manchus  than  they 
were  before. 


40  THE    RUSSO-JAPANESE    WAR 

The  beginning  of  the  modern  phase  of  the  Korean  ques- 
tion dates  from  the  year  1868.  In  that  year  the  Japanese, 
having  abohshed  the  Shogunate  and  feudaHsm,  and  having 
restored  the  power  of  the  Mikado  as  a  result  of  revolution 
and  the  opening  of  Japan  to  the  influence  of  Western  civil- 
ization, determined  to  reassert  their  ancient  claims  of  suzer- 
ainty over  Korea.  Accordingly,  the  Korean  Government 
was  invited  to  return  to  its  former  state  of  vassalage  to 
Japan.  This  invitation  was  met  with  an  insolent  refusal  at 
Seoul,  and  the  war-party  in  Japan  clamored  for  war;  but 
the  Japanese  Government  resisted  this  clamor  and  tried  to 
reestablish  its  influence  in  the  peninsula  by  peaceful  means. 
Little  progress  was  made,  however,  for  the  Koreans  had 
not  forgotten  the  Japanese  invasion  of  the  sixteenth  cen- 
tury; besides,  they  resented  the  Japanese  adoption  of  west- 
em  manners  and  customs.  Fearful  of  arousing  the  hos- 
tility of  China  and  Russia,  and,  having  learned  by  inquiry 
at  Peking  that  the  Chinese  Government  renounced  the  right 
of  interference  with  the  external  or  internal  affairs  of  Korea, 
Japan  agreed  in  1876''^  to  recognize  the  independence  and 
equality  of  Korea  as  a  sovereign  state.  In  addition  to  Fu- 
san,  which  was  recognized  as  a  Japanese  settlement  and  open 
port  of  commerce  between  Japan  and  Korea,  Japan  also 
obtained  a  promise  that  two  new  ports  should  be  opened  to 
Japanese  trade — a  promise  which  was  not  fulfilled,  however, 
before  1880. 

In  the  meantime,  other  Powers  had  also  become  interested 
in  this  attempt  to  open  the  doors  of  the  "Hermit  Nation"  to 
trade — a  policy  which  was  at  first  encouraged  by  the  great 
Chinese  statesman  Li-Hung  Chang  with  a  view  of  strength- 

^  For  the  treaty  of  1876,  see  De  Martens,  Nouveau  recueil,  2nd  series, 
t.  Ill,  p.  511. 


THE    CAUSES    OF    THE    WAR  4I 

ening  the  influence  and  position  of  China  in  Korea.  In 
spite  of  the  violent  opposition  at  times  of  the  "Exclusion- 
ists"  or  "Port  Closers",  the  "Civilization"  or  "Progres- 
sionist" party  triumphed  in  Korea,  and  in  1882  treaties  of 
friendship  and  commerce  were  concluded  with  England  and 
the  United  States.  These  were  followed  by  similar  treaties 
with  Germany  in  1883,  with  Russia  and  Italy  in  1884,  with 
France  in  1886-7,  ^"<^  ^^'^h  Austria-Hungary  in  1892. 

This  "open  door"  policy  was,  as  above  stated,  violently 
and  bitterly  opposed  by  the  "Exclusionist"  faction  in  Korea, 
who  incited  an  insurrection,  in  1882,  directed  mainly  against 
the  Japanese  at  Seoul,  which  resulted  in  the  intervention 
of  China  and  Japan  and  the  stationing  of  Chinese  and  Jap- 
anese troops  in  Korea.  In  December,  1884,  as  a  result  of 
another  insurrection,  which  had  been  incited  by  members  of 
the  pro-Japanese  or  "Civilization"  faction,  these  troops  came 
into  conflict,  and  China  and  Japan  suddenly  found  them- 
selves on  the  brink  of  war.  But  at  the  eleventh  hour  war 
was  averted  by  the  conclusion  of  the  Convention  of  Tientsin, 
negotiated  by  Count  Ito  and  Li-Hung  Chang,  in  1885,  in 
which  both  states  agreed  to  withdraw  their  forces  and  not  to 
dispatch  troops  to  Korea  in  the  future  without  previous 
notice  to  the  other.""     This  treaty  was  a  great  diplomatic 

"  For  good  accounts  of  these  events,  see  especially  Curzon,  Problems 
of  the  Far  East,  ch.  7;  Norman,  Peoples  and  Politics  of  the  Far  East, 
ch.  23;  an  article  on  "The  Question  of  Korea"  in  The  Fortnightly 
Reviezv  for  1903,  Vol.  80,  pp.  846  flf.,  by  Alfred  Stead;  and  the  last  (7th) 
edition  of  Griffis,  Corea,  ch.  50.     Sec  also  Hishida,  op  cit.,  pp.  165  fT. 

In  1885  Count  Ito  drew  up  the  following  agreement  for  the  peaceable 
settlement  of  the  pending  dispute  between  China  and  Japan : 

"The  pretension  of  Japan  over  Korea  is  economical,  i.  c.,  she  does 
not  claim  any  legal  authority  over  Korea,  but  from  her  geographical 
position  and  the  necessity  of  providing  for  her  constantly  increasing 
population,   she   is   intent   on   utilizing  Korea   as   the  best   source   from 


42  THE    RUSSO-JAPANESE    WAR 

triumph  for  Japan,  for  it  implied  the  recognition  by  China 
of  the  fact  that  Japan  stood  upon  a  footing-  of  equaHty  with 
herself  in  Korea. 

The  years  from  1885  to  1894  were  comparatively  quiet 
and  peaceful,  and  Japan  appears  to  have  been  fairly  success- 
ful in  her  attempts  to  obtain  a  fiscal  and  commercial  as- 
cendency in  Korea  in  spite  of  Chinese  intrigues  and  Korean 
conservatism. 

It  was  during  these  years  that  Russia  appears  for  the  first 
time  as  an  important  factor  in  Korean  affairs.  In  1884 
"rimiours,  not  without  solid  foundation,  were  circulated  of 
a  secret  agreement  between  Russia  and  Korea,  negotiated  by 
the  German  adviser  of  the  King,  by  which  Russia  was  to 
reorganize  the  Korean  army  and  to  support  the  Korean 
claims  to  Tsushima,  while  Korea  in  return  was  to  cede  Port 
Hamilton ;  and  it  was  something  more  than  rumour  of  the 
latter  intention  that  induced  the  British  Government  to  an- 
ticipate an  impending  Muscovite  seizure  by  hoisting  the 
British  flag  upon  those  islands"*^^  (in  April,  1885).  In 
1886  a  further  plot  for  placing  Korea  under  Russian  protec- 
tion was  detected  by  the  Chinese  Resident  at  Seoul.  In  the 
same  year,  the  Chinese  Government  having  obtained  a  prom- 
ise from  Russia  that  "if  the  British  would  evacuate  Port 

which  the  defect  of  the  home  produce  of  rice  is  to  be  supplied  as  well 
as  the  nearest  field  in  which  the  future  sons  of  Japan  may  find  employ- 
ment. For  this  purpose  Japan  would  have  Korea  always  independent, 
and  under  no  foreign  influence,  but  within  the  last  years  China  has 
been  sending  military  and  political  agents  to  Korea,  and  interfering 
with  Korean  international  affairs,  as  if  she  intended  to  make  real  her 
pretensions  over  Korea,  which  have  long  since  become  purely  historical. 
This  state  of  things  must  be  rectified,  for  Japan  would  never  consent 
to  Korea's  becoming  in  reality  a  part  of  the  Chinese  Empire." 

Cited  by  Alfred  Stead  in  Fortnightly  Review  (1903),  Vol.  80,  pp. 
852-53- 

"^  Curzon,  op  cit.  p.  210.    The  date  is  supplied  by  Norman,  p.  369. 


THE    CAUSES    OF    THE    WAR  43 

Hamilton,  the  Russian  Government  would  not  occupy 
Korean  territory  under  any  circumstances  ivhatever,"  that 
island  was  evacuated  on  February  27,  1887.***  But  in  1888 
Russia  concluded  a  commercial  convention  with  Korea  by 
which  she  obtained  valuable  concessions  in  the  way  of  lower 
customs  duties  on  goods  imported  overland  from  Russia 
into  Korea  (/.  e.,  lower  than  on  sea-borne  imports),  and  the 
right  of  having  "agents"  in  northern  Korea.  An  overland 
telegraphic  connection  between  Russia  and  Korea  was  also 
obtained  a  few  years  later  (in  1893). 

In  1894,  in  consequence  of  a  third  insurrection,  Japanese 
and  Chinese  troops  once  more  found  themselves  face  to  face 
in  Korea.  Japan,  incensed  by  the  murder  of  her  protege 
Kim-ok-Kim  at  Shanghai,  was  determined  to  solve  the 
Korean  question  by  the  introduction  of  certain  reforms,  as 
well  as  by  the  suppression  of  the  rebellion.  China,  on  the 
other  hand,  opjDosed  these  reforms  and,  calmly  ignoring  the 
Tientsin  Convention,  reasserted  her  ancient  claims  of  suzer- 
ainty. Among  the  results  of  the  Chino-Japanese  War  of 
1894-95  was  the  "definitive"  recognition  by  China  of  "the 
full  and  complete  independence  and  autonomy  of  Korea. "^^ 

The  impolitic  attempts  at  hasty  and  radical  reform  in 
Korea,  which  followed  the  outbreak  of  the  Chino-Japanese 
War,  were  resisted  by  the  Court  party  at  Seoul,  headed  by 
the  Queen  and  the  Min  family,  to  which  she  belonged.'" 
Early  in  October.  1895,  the  Queen  planned  a  couf^  d'etat 
with  a  view  to  disbanding  the  soldiers  who  had  been  trained 
by  Japanese  officers,  and  of  replacing  the  pro-Japanese  par- 

**  For  citation  from  the  British  Blue  Book  on  China,  No.  i  (1887),  p. 
38,  see  Norman,  p.  370. 

"  Art.  I  of  the  Treaty  of  Shimonoseki. 

™  This  faction  was  doubtless  aided  by  the  intrigues  of  M.  VVaeber,  the 
Russian  representative  at  Seoul. 


44  THE    RUSSO-JAPANESE    WAR 

tisans  of  reform  in  the  Korean  Cabinet  by  her  friends.  The 
result  was  a  counter-plot  (in  which  the  King's  father,  the 
veteran  conspirator  Tai-wen-Kun,  was  a  prime  mover)  to 
seize  the  King  and  Queen  with  the  aim  of  obtaining  com- 
plete control  of  the  Korean  Government  in  the  interest  of  the 
pro-Japanese  and  reform  party.  In  carrying  out  this  plot  (in 
which  the  Japanese  Minister  Miura  seems  to  have  been  an 
accomplice),  the  Queen  was  murdered  by  Japanese  and 
Korean  ruffians.  ^^ 

This  disgusting  crime,  although  it  assured  the  power  of 
the  reform  cabinet  for  the  time  being,  reacted  upon  its  per- 
petrators, and  was  followed,  four  months  later,  by  another 
equally  revolting,  by  means  of  which  Russia  obtained  con- 
trol of  the  Government  of  Korea.  ''In  January,  1896,  there 
took  place  a  slight  uprising  in  Northern  Korea,  at  the  in- 
stigation, it  was  said,  of  pro-Russian  leaders.  When  the 
major  portion  of  the  army  had  been  sent  out  of  the  capital 
to  suppress  the  rebellion,  127  Russian  marines  with  a  cannon 
suddenly  landed  at  Chemulpo  on  February  10,  and  immedi- 
ately entered  Seoul."^^  The  next  day,  the  King,  accom- 
panied by  the  Crown  Prince  and  some  court  ladies,  fled  in 
disguise  to  the  Russian  Legation,  where  he  remained  until 
February  20,  1897.  ^^  ^  result  of  a  royal  edict,  which  de- 
clared the  Cabinet  Ministers  guilty  of  treason,  the  Prime 
Minister  and  two  other  ministers  were  murdered  on  the 
streets  of  Seoul  in  broad  daylight,  while  several  others  fled 
to  Japan. 

A  brief  period  of  Russian  ascendency  now  followed,  dur- 

"  Asakawa  (p.  261)  says  it  is  "probable  that  the  murder  of  the  Queen 
was  premeditated  and  that  Minister  Miura  had  been  prevailed  upon  to 
connive  at  the  guilt  of  the  murderers."  For  further  evidence,  see  M. 
Rey  in  Revue  Generale  de  Droit  International  Public,  note  on  p.  308. 

"  Asakawa,  p.  262. 


THE    CAUSES    OF    THE    WAR  45 

ing  which  Japan  saw  herself  deposed  from  the  position  in 
Korea  to  which  her  victories  entitled  her,  by  a  nation  which 
appeared  to  be  both  an  upstart  and  a  usurper  on  the  Sea  of 
Japan.  Among  other  things,  the  Russians  obtained  a  val- 
uable timber  concession  in  the  Yalu  valley  on  the  northern 
frontier,  and  a  mining  concession  along  the  Tumen  River. 
The  Korean  troops  trained  by  Japanese  officers  were  abol- 
ished and  the  Japanese  soldiers  stationed  in  Korea  reduced 
in  number. 

In  the  summer  of  1896  Japan  formally  departed  from  her 
policy  of  the  past  two  decades  of  upholding  the  independence 
and  integrity  of  Korea  by  her  own  efforts,  and  sought  the 
cooperation  of  Russia  toward  the  same  end.  On  May  14 
the  Russian  and  Japanese  Ministers  at  Seoul  concluded  a 
Memorandum  which  fixed  the  number  and  disposition  of 
Japanese  and  Russian  troops  in  Korea.'''  On  June  9,  1896, 
the  Yamagata-Lobanoff  Protocol  was  signed  at  St.  Peters- 
burg. It  was  thereby  agreed  :  (  i )  That  the  Japanese  and 
Russian  Governments  should  unite  in  advising  the  Korean 
Government  to  "suppress  all  unnecessary  expenses  and  to 
establish  an  equilibrium  between  expenditure  and  revenue. 
If,  as  a  result  of  reforms  which  should  be  considered  indis- 
pensable, it  should  become  necessary  to  have  recourse  to 
foreign  debts,  the  two  Governments  should,  of  a  common 
accord,  render  their  support  to  Korea."  (2)  "The  Japa- 
nese and  Russian  Governments  should  try  to  abandon  to 

■"  The  Japanese  were  to  be  permitted  to  have  200  gendarmes  for  the 
protection  of  their  telegraph  line  between  Fusan  and  Seoul.  Russia 
and  Japan  were  to  be  allowed  to  keep  an  equal  and  specified  number  of 
troops  at  Seoul,  Fusan,  and  Gensan.  These  troops  were  to  be  with- 
drawn as  soon  as  internal  tranquillity  was  assured,  but  this  contingency 
apparently  never  arose.  For  the  terms  of  this  Memorandum,  see  Asa- 
kawa,  pp.  265-66. 


46  THE    RUSSO-JAPANESE    WAR 

Korea,  in  so  far  as  the  financial  and  economic  situation  of 
that  country  should  permit,  the  creation  and  maintenance  of 
an  armed  force  and  of  a  police  organized  of  native  subjects, 
in  proportion  sufficient  to  maintain  internal  order,  without 
foreign  aid."  (3)  Russia  was  to  be  permitted  to  estab- 
lish a  telegraph  line  from  Seoul  to  her  frontier,  the  Japanese 
Government  being  allowed  to  administer  those  lines  already 
in  its  possession.  (4)  "In  case  the  principles  above  ex- 
pounded require  a  more  precise  and  m.ore  detailed  definition, 
or  if  in  the  future  other  points  should  arise  about  which  it 
should  be  necessary  to  consult,  the  representatives  of  the  two 
Governments  should  be  instructed  to  discuss  them  ami- 
cably."^* It  will  thus  be  seen  that  Asakawa  does  not  over- 
state the  case  when  he  says :"  "Despite  the  millenniums  of 
her  historic  relations  with  Korea,  and  the  actual  preponder- 
ance of  her  interests  therein,  and  after  her  successful  libera- 
tion of  the  kingdom  from  Chinese  suzerainty  by  a  costly  war, 
Japan  now  admitted  into  the  peninsular  politics  on  an  equal 
footing  with  herself  a  Power  which  owed  its  bright  success 
to  a  mere  diplomacy  of  less  than  two  years'  standing,  and 
whose  policy  seemed  to  be  guided  by  principles  entirely  at 
variance  with  the  independence  and  strength  of  Korea." 

The  Protocol  of  June,  1896,  was  no  sooner  signed  than 
Russia  began  to  violate  its  terms.  In  the  same  month 
Russia  decided  to  try  to  gain  control  of  the  Korean  army  by 
giving  it  Russian  military  instruction  and  discipline.  This 
plan  was  partly  carried  out  in  the  following  year.  In  the 
same  year  ( 1897)  she  attempted  to  obtain  control  of  Korean 
finances  by  requesting  that  the  disposal  of  all  taxes  and  cus- 
toms be  placed  in  the  hands  of  M.  Kir  Alexieff .    Mr.  Brown, 

^*  For  the  text,  see  Asakawa,  p.  264. 
''Ibid.,  p.  267. 


THE    Cx\USES    OF    THE    WAR  4J 

a  British  subject,  was  accordingly  dismissed  from  the  posi- 
tion of  Financial  Adviser  and  General  Director  of  Customs 
in  Korea  on  October  26,  1897,  in  spite  of  the  protest  of  the 
British  Consul,  and  the  Russo-Korean  Bank  was  organized 
to  transact  the  financial  and  commercial  affairs  of  the  pen- 
insula ;  but  Mr.  Brown  was  soon  restored  to  his  fonner  office 
in  consequence  of  a  visit  to  Chemulpo  of  seven  British  men- 
of-war  on  December  2y,  1897. 

The  suspicions  and  opposition  of  the  Koreans  were 
aroused  by  these  measures,  as  well  as  by  the  overbearing 
conduct  of  M.  Speyer,  who  had  replaced  M.  Waeber  as  Rus- 
sia's representative  at  Seoul ;  and  a  strong  reaction  or  re- 
vulsion of  feeling  against  Russia  set  in  which  changed  the 
attitude  of  the  Korean  Government  and  people  toward 
Japan.  For  this  and  other  reasons  (the  chief  of  which  was 
doubtless  her  recent  lease  of  Port  Arthur  and  Talien-wan) 
Russia  found  it  advisable  to  try  to  conciliate  Japan.  Ac- 
cordingly, there  was  concluded  between  these  two  nations  the 
Nishi-Rosen  Protocol  of  April  25,  1898.  This  agreement 
is  sufficiently  important  to  be  quoted  in  full : 

"Article  I.  The  Imperial  Governments  of  Japan  and  Russia 
definitely  recognize  the  sovereignty  and  entire  independence  of 
Korea,  and  mutually  engage  to  abstain  from  all  direct  inter- 
ference in  the  internal  affairs  of  that  country. 

"Art.  II.  Desiring  to  remove  every  possible  cause  of  mis- 
understanding in  the  future,  the  Imperial  Governments  of  Japan 
and  Russia  mutually  engage,  in  case  Korea  should  have  re- 
course to  the  counsel  and  assistance  of  either  Japan  or  Russia, 
not  to  take  any  measure  regarding  the  nomination  of  military 
instructors  and  financial  advisers,  without  having  previously 
arrived  at  a  mutual  accord  on  the  subject. 

"Art.  III.  In  viev^'  of  the  great  development  of  commercial 
and  industrial  enterprise  of  Japan  in  Korea,  as  also  the  con- 


48  THE    RUSSO-JAPANESE    WAR 

siderable  number  of  Japanese  subjects  residing  in  that  country, 
the  Russian  Imperial  Government  shall  not  impede  the  develop- 
ment of  the  commercial  and  industrial  relation  between  Japan 
and  Korea. "^® 

It  will  be  seen  that  this  Protocol  was  much  more  favorable 
to  Japan  than  the  two  agreements  of  1 896.  It  not  only  con- 
tained an  explicit  recognition  of  the  "sovereignty  and  entire 
independence"  of  Korea,  but  it  restored  Japan  to  a  footing 
of  political  equality  with  Russia  in  the  peninsula,  and,  in 
addition,  Japan  obtained  from  Russia  a  formal  recognition 
of  her  special  economic  interests  in  that  country. 

In  spite  of  this  agreement,  the  rivalry  between  Japan  and 
Russia  in  Korea  continued  during  the  next  five  years  ( 1899- 
1904),  under  the  leadership  of  Mr.  Hayashi  and  M.  Pavloff, 
the  representatives  at  Seoul  of  Japan  and  Russia  respectively. 
Russia  appears  in  most  cases  to  have  been  the  aggressor,  re- 
peatedly violating  the  Protocols  of  1896  and  1898,  while 
Japan  seems  to  have  confined  herself  to  the  quiet  develop- 
ment of  her  commercial  and  industrial  interests  in  the  pen- 
insula. Nearly  every  move  made  by  the  bold  and  enter- 
prising Pavloff  was  checkmated  or  duplicated  by  the  cautious 
but  persistent  Hayashi,  and,  on  the  whole,  it  may  be  said 
that  Japan  regained  and  maintained  her  former  commercial 
and  financial  ascendency  in  Korea."' 

"  For  the  French  text  of  this  Protocol,  see  Treaties  and  Conventions 
between  Japan  and  other  Powers,  p.  394.  See  also  Alfred  Stead  in 
Fortnightly  Review,  Vol.  80,  pp.  856-57.  For  the  English  translation, 
see  Asakawa,  p.  271.  It  should  be  noted  that  this  Protocol  together 
with  that  of  1896  became  the  basis  of  Japan's  direct  negotiations  with 
Russia  regarding  Korea  which  preceded  the  Russo-Japanese  War. 

"  E.  g.,  Japan  obtained  a  concession  from  the  Korean  Government 
giving  her  the  right  of  priority  of  construction  of  railways  between 
Seoul  and  Fusan.  She  also  obtained  control  of  the  finances  of  the 
country  by  the  establishment  of  banks  and  the  control  of  the  currency. 


THE    CAUSES    OF    THE    WAR  49 

The  first  efforts  of  Russia  (1899-1901)  were  directed 
toward  acquiring  certain  leases  at  Masampo  on  the  southern 
coast  of  Korea,  with  a  view  of  transforming  this  valuable 
harbor  into  a  base  for  the  use  of  the  Russian  navy;  but  M. 
Pavloff  found  himself  outwitted  and  checkmated  at  every 
turn  by  the  Japanese,  who  had  managed  to  secure  possession 
of  every  valuable  and  important  site  within  the  three-mile 
limit  open  to  foreign  purchase.  But  Russia  succeeded  in 
obtaining  some  leases  of  little  practical  value,  and  secured 
from  the  Korean  Government  a  "pledge"  not  to  alienate  any 
part  of  the  Kojedo  Island,  near  Masampo,  Russia  herself 
agreeing  not  to  seek  such  alienation  on  her  part.^^ 

There  was  also  an  unsuccessful  attempt  during  this  period 
to  place  the  Korean  Government  under  financial  obligations 
to  Russia  by  means  of  a  French  loan,  and  Russian  agents  or 
emissaries  caused  considerable  irritation  in  Japan  by  vainly 
attempting  to  obstruct  the  circulation  of  the  bank  notes  is- 
sued by  the  Korean  branch  of  the  First  Bank  of  Japan.  In 
March,  1899,  M.  Pavloff  succeeded  in  leasing,  for  the  use  of 
a  Russian  subject,  three  whaling  stations  on  the  northeastern 
coast  of  Korea;'®  but  "this  concession  was  offset  by  one 
secured  by  a  Japanese  citizen  on  February  14,  1900,  which 
conferred  upon  him  the  right  of  whaling  for  three  years, 
subject  to  renewal,  along  the  Korean  coast."*" 

Japanese  trade  with  and  emigration  to  Korea  have  also  greatly  increased 
since  1895. 

"  Asakawa,  p.  276.  Cf.  Hamilton,  Korea,  pp.  198-99.  Russia  after- 
wards attempted  to  secure  a  naval  base  at  Nam-pu  on  the  Ching-kai- 
wan  about  20  miles  south  of  Masampo,  but  failed  owing  to  the  strenu- 
ous protest  of  Japan.    See  Hamilton,  op.  cit.,  p.  200. 

"  For  this  contract  see  U.  S.  House  Doc  56th  Congress,  ist  session, 
pp.  484-88.  For  some  interesting  comments  on  these  leases,  see  London 
Times  for  June  2,  1899. 

"Asakawa,  p.  283. 


50  THE    RUSSO-JAPANESE    WAR 

Another  bone  of  contention  between  Japan,  on  the  one 
side,  and  Russia  and  France,  on  the  other,  lay  in  the  ques- 
tion of  the  construction  of  the  Seoul- Wiju  Railway.  In 
1894  Korea  had  granted  to  Japan  priority  of  rights  in  the 
construction  of  railways  between  Seoul  and  Fusan.  In  1898 
Japan  obtained  control  of  the  short  railway  between  Seoul 
and  Chemulpo — an  American  concession — and  in  the  same 
year  Japan  entered  into  a  definite  contract  with  the  Korean 
Government  for  the  construction  of  the  Fusan-Seoul  line.*^ 
Prior  to  this  (in  1896)  a  French  company  had  been  granted 
a  concession  to  build  a  railway  from  Seoul  to  Wiju  on  the 
Yalu,  but  this  company  tried  to  sell  its  concession,  first  to 
Russia  and  afterward  to  Japan.  In  1900  the  Korean  Gov- 
ernment announced  that  the  line  would  be  built  with  Korean 
capital,  but  this  project  had  to  be  abandoned.  In  1903 
Russia  made  several  attempts  to  obtain  the  concession,  but 
the  Korean  Government  declined  to  entertain  such  a  propo- 
sition. 

But,  aside  from  her  attempts  to  obtain  control  of  the  har- 
bor of  Masampo.  Russia's  conduct  on  the  northern  frontier 
of  Korea  along  the  Tumen  and  Yalu  rivers  was  the  greatest 
source  of  anxiety  to  Japan.  In  1896  Russia  had  obtained 
valuable  mining  concessions  in  two  districts  near  the  port 
of  Kiong-hung  at  the  mouth  of  the  Tumen  River,  and  later 
sought  to  extend  her  influence  in  that  region.  More  im- 
portant and  dangerous,  however,  to  the  interests  of  Japan 
were  the  attempts  of  Russia  to  obtain  an  actual  foothold  on 
Korean  territory  at  Yong-am-po  on  the  Korean  side  of  the 
Yalu  River.     As  far  back  as  1896,  when  the  Korean  king 

"  This  line  was  in  process  of  being  built  at  the  outbreak  of  the  Russo- 
Japanese  War.  It  has  since  been  completed  and  the  line  extended  to 
Wiju. 


THE    CAUSES    OF    THE    WAR  5I 

was  a  guest  at  the  Russian  legation,  a  Russian  merchant  had 
obtained  timber  concessions  on  the  Uining  Island  in  the  Sea 
of  Japan  and  on  the  Tumen  and  Yalu  rivers.  The  conces- 
sion along  the  Yalu  was  to  be  forfeited  unless  work  was 
begun  within  five  years  in  the  other  two  regions.  This  con- 
dition''" does  not  appear  to  have  been  complied  with  when 
the  Korean  Government  was  suddenly  notified  on  x^pril  13, 
1903,  that  the  Russian  timber  syndicate  would  at  once  begin 
the  work  of  cutting  timber  on  the  Yalu.  Early  in  May, 
sixty  Russian  soldiers  in  civilian  dress,  later  increased  by 
several  hundred  more,  were  reported  to  have  occupied  Yong- 
am-po,  a  point  rather  remote  from  the  places  where  actual 
cutting  was  in  progress.  "At  the  same  time,  there  was  tak- 
ing place  a  mysterious  mobilization  of  troops  from  Liao- 
yang  and  Port  Arthur  towards  Feng-hwang-Cheng  and 
Antung  on  the  other  side  of  the  Yalu."®^  Early  in  June 
four  Russian  warships  paid  a  week's  visit  to  Chemulpo.  In 
August,  M.  Pavloff  appears  to  have  been  on  the  point  of 
obtaining  an  extension  of  the  Yong-am-po  lease  from  the 
Korean  Government,  but  this  was  prevented  by  the  receipt 
of  an  ultimatum  from  the  Japanese  Minister.  In  his  dis- 
patch of  August  25,  Mr.  Hayashi  threatened  that  if  the 
Korean  Government  were  to  sign  such  a  lease,  Japan  would 
regard  diplomatic  relations  between  the  two  countries  as 
suspended,  and  would  consider  herself  free  to  act  in  her  own 
interests.*** 

In  the  meantime,  a  state  of  anarchy  had  prevailed  on  the 

"  Asakawa,  p.  290.    Cf.  Hamilton,  p.  201. 

**Asakawa,  p.  292.    For  a  more  detailed  account  of  these  movements, 
see  Blue  Book  on  China,  No.  2  (1904),  Nos.  115,  116,  128,  129,  131,  and 

134- 
**  See  Hamilton,  Korea,  pp.  201-206. 


52  THE    RUSSO-JAPANESE    WAR 

northern  frontier  of  Korea,  and  Russia  had  increased  her 
forces  at  Antting.  In  the  face  of  these  ominous  events  in 
Korea — doubly  ominous  in  view  of  the  suspension  of  the 
Russian  evacuation  of  Manchuria — Japan  decided  to  insti- 
tute direct  negotiations  with  Russia  with  a  view  of  arriving, 
if  possible,  at  a  definite  understanding  or  solution  of  the 
Korean  and  Manchurian  questions  which  would  be  satis- 
factory to  both  nations. 

On  July  28,  1903,  Mr,  Kurino,  the  Japanese  Minister  at 
St.  Petersburg,  was  informed  by  Baron  Komura,  the  Jap- 
anese Foreign  Minister,  that  the  recent  conduct  of  Russia 
at  Peking  (in  proposing  new  demands),  in  Manchuria  (by 
tightening  her  hold  upon  it),  and  in  Korea  (by  her  in- 
creased activity  on  the  Korean  frontier)  had  caused  grave 
concern  to  the  Imperial  Government  of  Japan.  "The  un- 
conditional and  permanent  occupation  of  Manchuria  by 
Russia  would,"  he  said,  "create  a  state  of  things  prejudicial 
to  the  security  and  interests  of  Japan.  The  principle  of 
equal  opportunity  would  thereby  be  annulled,  and  the  terri- 
torial integrity  of  China  impaired.  There  is,  however,  a 
still  more  serious  consideration  for  the  Japanese  Govern- 
ment, that  is  to  say,  if  Russia  was  established  on  the  flank 
of  Korea  it  would  be  a  constant  menace  to  the  separate  ex- 
istence of  that  Empire,  or  at  least  would  make  Russia  the 
dominant  Power  in  Korea.  Korea  is  an  important  out- 
post in  Japan's  line  of  defense,  and  Japan  consequently  con- 
siders her  independence  absolutely  essential  to  her  own  re- 
pose and  safety.  Moreover,  the  political  as  well  as  commer- 
cial and  industrial  interests  and  influence  which  Japan  pos- 
sesses in  Korea  are  paramount  over  those  of  other  Powers. 
These  interests  and  influence  Japan,  having  regard  to  her 


THE    CAUSES    OF    THE    WAR  53 

own  security,  can  not  consent  to  surrender  to,  or  share  with, 
another  Power."^^ 

In  view  of  these  interests,  so  vital  to  Japan,  Mr.  Kurino 
was  instructed  to  present  the  following  note  vcrhalc  to  Count 
Lamsdorff,  the  Russian  Minister  of  Foreign  Affairs : 

"The  Japanese  Government  desire  to  remove  from  the  rela- 
tions of  the  two  Empires  every  cause  of  future  misunderstand- 
ing, and  believe  that  the  Russians  share  the  same  desire.  The 
Japanese  Government  would  therefore  be  glad  to  enter  with  the 
Imperial  Russian  Government  upon  an  examination  of  the  con- 
dition of  affairs  in  the  regions  of  the  extreme  East,  where 
their  interests  meet,  with  a  view  of  defining  their  respective 
special  interests  in  those  regions. 

"If  this  suggestion  fortunately  meets  with  the  approval,  in 
principle,  of  the  Russian  Government,  the  Japanese  Govern- 
ment will  be  prepared  to  present  to  the  Russian  Government 
their  views  as  to  the  nature  and  scope  of  the  proposed  under- 
standing."^* 

The  assent  of  Count  Lamsdorff  and  the  Czar  having  been 
obtained  on  August  12,  the  following  articles  were  prepared 
by  the  Japanese  Government  as  the  basis  of  an  understand- 
ing between  Japan  and  Russia : 

"i.  A  mutual  engagement  to  respect  the  independence  and 
territorial  integrity  of  the  Chinese  and  Korean  Empires,  and  to 
maintain  the  principle  of  equal  opportunity  for  the  commerce 
and  industry  of  all  nations  in  those  countries. 

"2.    A  reciprocal  recognition  of  Japan's  preponderating  in- 

^  Correspondence  betzvccn  Japan  and  Russia  (1903-1904),  published 
by  the  Japanese  Government.  Baron  Komura  to  Mr.  Kurino,  Dispatch 
No.  I.  Translation  by  Asakawa.  pp.  297-298.  On  the  whole  Asakawa's 
translation  of  these  dispatches  is  to  be  preferred  to  that  of  the  official 
publication. 

"  Asakawa,  pp.  297-98. 


54  THE    RUSSO-JAPANESE    WAR 

terests  in  Korea  and  Russia's  special  interests  in  railway  enter- 
prises in  Manchuria,  and  of  the  right  of  Japan  to  take  in  Korea, 
and  of  Russia  to  take  in  Manchuria,  such  measures  as  may  be 
necessary  for  the  protection  of  their  respective  interests  as 
above  defined,  subject,  however,  to  Article  I  of  this  Agreement. 

"3.  A  reciprocal  undertaking  on  the  part  of  Russia  and 
Japan  not  to  impede  the  development  of  those  industrial  and 
commercial  activities,  respectively,  of  Japan  in  Korea  and  of 
Russia  in  Manchuria,  which  are  not  inconsistent  with  the  stipu- 
lations of  Article  I  of  this  Agreement. 

"An  additional  engagement  on  the  part  of  Russia  not  to  im- 
pede the  eventual  extension  of  the  Korean  Railway  into  South- 
ern Manchuria  so  as  to  connect  with  the  Eastern  Chinese  and 
Shan-kai-kwan  -  Niu-chwang  lines. 

"4.  A  reciprocal  engagement  that  in  case  it  should  be  found 
necessary  to  send  troops  by  Japan  to  Korea,  or  by  Russia  to 
Manchuria,  for  the  purpose  of  protecting  the  interests  men- 
tioned in  Article  2  of  this  Agreement,  or  of  suppressing  insur- 
rection or  disorder  liable  to  create  international  complications, 
the  troops  so  sent  are  in  no  case  to  exceed  the  actual  number 
required  and  are  to  be  forthwith  recalled  as  soon  as  their  mis- 
sions are  accomplished. 

''5.  The  recognition  on  the  part  of  Russia  of  the  exclusive 
right  of  Japan  to  give  advice  and  assistance  in  the  interest  of 
reform  and  good  government  in  Korea,  including  necessary 
military  assistance. 

"6.  This  Agreement  to  supersede  all  previous  arrangements 
between  Japan  and  Russia  respecting  Korea."*^ 

The  essential  features  of  these  proposals  were :  ( i )  A 
mutual  engagement  to  respect  the  independence  and  terri- 
torial integrity  of  the  Chinese  and  Korean  empires,  and  to 
maintain  the  "open  door"  in  these  countries;  and  (2)  a  re- 
ciprocal recognition  of  Japan's  preponderating  interests  in 

'^Dispatch  No.  3  of  the  Correspondence  cited  above.  Cf.  Asakawa, 
PP-  303-04- 


THE    CAUSES    OF    THE    WAR  55 

Korea  and  of  Russia's  special  interests  in  Manchuria.** 
These  demands  were  never  materially  altered  by  Japan  dur- 
ing the  negotiations,  and  their  persistent  rejection  by  Rus- 
sia/® together  with  her  delay  in  replying  and  her  prepara- 
tions for  war,  finally  precipitated  the  struggle. 

After  a  delay  of  eight  weeks,  the  seat  of  negotiations  hav- 
ing, in  the  meantime,  at  the  request  of  Russia,  been  trans- 
ferred from  St.  Petersburg  to  Tokio,  in  order  that  Admiral 
Alexieff  might  be  more  freely  consulted,  Russia  presented 
the  following  counter-note  to  the  Japanese  Government, 
through  Baron  Rosen,  the  Russian  Minister  at  Tokio.  on 
October  3,  1903: 

"i.  Mutual  engagement  to  respect  the  independence  and 
territorial  integrity  of  the  Korean  Empire. 

"2.  Recognition  by  Russia  of  Japan's  preponderating  inter- 
ests in  Korea,  and  of  the  right  of  Japan  to  give  advice  and  as- 
sistance to  Korea  tending  to  improve  the  civil  administration 
of  the  Empire  without  infringing  the  stipulations  of  Article  I. 

"3.  Engagement  on  the  part  of  Russia  not  to  impede  the 
commercial  and  industrial  undertakings  of  Japan  in  Korea,  nor 
to  oppose  any  measures  taken  for  the  purpose  of  protecting 
them,  so  long  as  such  measures  do  not  infringe  the  stipulations 
of  Article  I. 

"4.  Recognition  of  the  right  of  Japan  to  send,  for  the  same 
purpose,  troops  to  Korea,  with  the  knowledge  of  Russia,  but 
their  number  not  to  exceed  that  actually  required,  and  with  the 

"  It  may  be  said  that  Japan  demanded  more  in  Korea  than  she  was 
willing  to  concede  to  Russia  in  Manchuria.  This  is  undoubtedly  true, 
but  she  appears  to  have  been  justified  therein  by  conditions  in  Korea 
and  the  greater  proximity  and  vitality  of  her  interests  there. 

**  The  charge  made  by  the  Russian  Government  in  its  official  note  of 
February  9,  1904  (see  Annuaire  Diplomatique  de  I'empire  de  Russe  for 
1905,  p.  235)  that  "the  Tokio  Cabinet  gave  evidence  of  ever  increasing 
pretensions  in  the  course  of  the  negotiations"  can  not  be  substantiated. 


56  THE    RUSSO-JAPANESE    WAR 

engagement  on  the  part  of  Japan  to  recall  such  troops  as  soon 
as  their  mission  is  accomplished. 

"5,  Mutual  engagement  not  to  use  any  part  of  the  territory 
of  Korea  for  strategical  purposes,  nor  to  undertake  on  the 
coasts  of  Korea  any  military  works  capable  of  menacing  the 
freedom  of  navigation  in  the  Straits  of  Korea. 

"6.  Mutual  engagement  to  consider  that  part  of  the  terri- 
tory of  Korea  lying  to  the  north  of  the  thirty-ninth  parallel  as 
a  neutral  zone  into  which  neither  of  the  contracting  parties 
shall  introduce  troops. 

"7.  Recognition  by  Japan  of  Manchuria  and  its  littoral  as  in 
all  respects  outside  her  sphere  of  interest. 

"8.  This  Agreement  to  supersede  all  previous  agreements 
between  Russia  and  Japan  regarding  Korea."®" 

It  will  thus  be  seen  that  in  these  counter-proposals  Russia 
not  only  reduced  Japan's  demands  regarding  Korea,  but 
imposed  new  conditions  upon  Japan  in  that  country.  But — 
most  significant  of  all — she  quietly  ignored  the  most  im- 
portant part  of  Article  I  of  the  Japanese  proposals,  viz.,  that 
part  which  stipulated  for  a  mutual  agreement  to  respect  the 
independence  and  territorial  integrity  of  the  Chinese  Empire 
and  to  maintain  the  "open  door"  in  China  and  Korea,  and 
she  merely  retained  that  part  which  called  for  a  "mutual 
agreement  to  respect  the  independence  and  territorial  in- 
tegrity of  Korea."  Russia  not  only  refused  to  make  any 
declarations  regarding  her  future  policy  in  China  or  Man- 
churia, but  required  Japan  expressly  to  recognize  Manchuria 
as  "in  all  respects  outside  her  sphere  of  interest." 

In  the  meantime  Russian  activity  had  been  increased  both 
in  Manchuria  and  in  Korea.     On  August  13,  1903,  Admiral 

**Asakawa,  pp.  308-09.  Dispatch  No.  17,  of  the  Correspondence. 
These  counter-proposals  were  prepared  by  Admiral  Alexieff  and  Baron 
Rosen. 


THE    CAUSES    OF    THE    WAR  57 

Alexieff  was  appointed  Viceroy  of  the  Far  East.  His  policy 
appears  to  have  been,  "on  the  one  hand,  to  deal  with  Japan's 
overtures  lightly  and  leisurely,  but,  on  the  other,  to  hasten 
the  establishment  of  Russian  control  in  Manchuria  and  on 
the  Korean  frontier,  so  that  Japan  might  in  time  be  com- 
pelled to  bow  to  the  situation  and  accept  terms  dictated  by 
Russia.'"*'  It  was  probably  in  pursuance  of  this  policy  that 
M.  Lessar  presented  six  new  demands  at  Peking  on  Sep- 
tember 6,  as  conditions'^  for  the  final  evacuation  of  Niu- 
chwang  and  Manchuria,  but  these  were  refused  by  the  Chi- 
nese Government  at  the  instigation  of  Great  Britain  and 
Japan.  The  conduct  of  the  Russians  in  the  neighborhood  of 
Yong-am-po  on  the  Korean  frontier  of  the  Yalu  River  also 
became  more  aggressive  and  aggravating  at  this  time. 

The  Japanese  statesmen  having  agreed  upon  an  "irreduci- 
ble minimum",  Japan  made  several  important  concessions, 
which  were  communicated  in  a  note  to  Baron  Rosen  by 
Baron  Komura  on  October  30.  These  included  the  guar- 
antee of  the  freedom  of  the  Korean  Straits ;  the  establish- 
ment of  a  neutral  zone  extending  fifty  kilometres  on  each 
side  of  the  Korean-Manchurian  frontier;  a  "mutual  engage- 
ment not  to  impede  the  connection  of  the  Korean  Railway 
and  the  Eastern  Chinese  Railway  when  these  railways  shall 
have  been  eventually  extended  to  the  Yalu";  a  reciprocal 
engagement  not  to  interfere  with  each  other's  treaty  rights 
in  Korea  and  China;  and  a  recognition  by  Japan  that  Man- 
churia is  outside  her  sphere  of  special  interest  in  return  for  a 
recognition  by  Russia  that  Korea  is  outside  her  sphere  of 
special  interest.'^ 

"  Asakawa,  p.  :i2^. 

^-  Ibid.,  p.  316.    See  supra,  note  57  on  p.  2,^. 

"For  an  English  translation  of  this  note,  see  Asakawa,  pp.  324-25 
Dispatch  No.  22  in  the  Correspondence. 


58  THE    RUSSO-JAPANESE    WAR 

In  her  counter-reply,  which  was  delayed  until  December 
II,  Russia  repeated  her  former  counter-proposals,  with  the 
omission  of  the  clause  regarding  Manchuria  and  the  inser- 
tion of  the  Japanese  proposal  relating  to  the  connection  of 
the  Korean  and  Chinese  Eastern  Railways. 

On  December  21  the  Japanese  Government  made  a  third 
overture  to  Russia.  Baron  Komura  tried  to  make  it  clear 
to  the  Russian  Government  that  Japan  desired  "to  bring 
within  the  purview  of  the  proposed  arrangement  all  those 
regions  in  the  Far  East  where  the  interests  of  the  two  Em- 
pires meet.'"**  He  also  presented  several  slight  amend- 
ments to  the  Russian  counter-proposals  regarding  Korea, 
and  the  total  suppression  of  Article  VI,  providing  for  a 
neutral  zone  in  northern  Korea.  But  when  the  reply  of 
Russia,  which  reached  Tokio  on  January  6,  1904,  was  re- 
ceived, it  was  found  that  not  only  was  there  no  mention 
made  of  the  territorial  integrity  of  China  in  Manchuria,  but 
that  Russia  again  insisted  upon  the  recognition  by  Japan  of 
Manchuria  and  its  littoral  as  being  outside  her  sphere  of  in- 
terests. Russia  now  agreed  to  insert  a  clause  to  the  effect 
that  she  would  "not  impede  Japan  nor  other  Powers  in  the 
enjoyment  of  the  rights  and  privileges  acquired  by  them 
under  existing  treaties  with  China,  exclusive  of  the  estab- 
lishment of  settlements,"^''  on  condition  that  Japan  agree  not 
to  use  any  part  of  the  territory  of  Korea  for  strategical  pur- 
poses, and  on  condition  that  she  agree  to  the  establishment 
of  a  neutral  zone  in  northern  Korea.^® 

**  Dispatch  No.  35. 

®°  The  italics  are  the  author's.  Russia  resisted  the  attempts  of  foreign 
nations  to  secure  rights  of  settlement  and  consular  appointments  in 
Manchuria. 

'•  For  these  Russian  counter-proposals,  see  Asakawa,  p.  333.  Dispatch 
No.  38. 


THE    CAUSES    OF    THE    WAR  59 

It  will  thus  be  seen  that  the  views  of  the  two  Governments 
were  apparently  as  irreconcilable  as  ever,  but  the  Japanese 
Government  made  a  fourth  attempt  to  obtain  a  favorable 
reply  from  Russia.  On  January  13  Baron  Komura  in- 
structed Mr.  Kurino  to  present  a  note  verbal e  to  Count 
Lamsdorff  which  contained  the  following  modifications  of 
the  Russian  counter-proposals : 

1.  Suppression  of  the  clause  (in  Article  5)  requiring  Japan 
not  to  use  any  part  of  Korea  for  strategical  purposes. 

2.  Suppression  of  the  whole  Article  (6)  concerning  the  es- 
tablishment of  a  neutral  zone. 

3.  Recognition  by  Japan  of  Manchuria  and  its  littoral  as  be- 
ing outside  her  sphere  of  interest,  provided  that  Russia  will 
engage :  (a)  to  respect  the  territorial  integrity  of  China  and 
Manchuria;  (b)  to  recognize  the  treaty  rights,  including  those 
of  settlement  of  Japan  and  other  Powers  in  Manchuria;  (c)  to 
recognize  Korea  and  its  littoral  as  being  outside  her  sphere  of 
interest. 

4.  Recognition  by  Japan  of  Russia's  special  interests  in  Man- 
churia, and  of  the  right  of  Russia  to  take  measures  necessary 
for  the  protection  of  those  interests.*' 

An  early  reply  to  these  proposals  was  repeatedly  asked  for. 
but  the  reply,  which  appears  to  have  contained  a  reiteration 
of  substantially  the  same  points  as  the  three  previous  ones, 
did  not  reach  Tokio  until  Fel)ruary  7.  or  the  day  following 
the  severance  of  diplomatic  relations  between  Japan  and 
Russia  on  February  6. 

In  the  meantime,  Russia  had  increased  her  military  activ- 
ity and  warlike  preparations  in  the  Far  East.  Since  April. 
1903,  she  had  dispatched  34  war  vessels,  aggregating  about 
113,000  tonnage,  to  the  Pacific,  and  by  the  beginning  of 

"  Asakawa,  pp.  337-38.    Dispatch  No.  39. 


6o  THE    RUSSO-JAPANESE    WAR 

February,  1904,  she  had  over  40,000  soldiers  in  Manchuria 
and  was  preparing  to  send  over  200,000  more  troops  in  case 
of  need.  In  January,  1904,  the  mihtary  activity  of  Russia 
was  greatly  accelerated.  °^ 

On  February  6,  1904,  the  Russian  Government  was  noti- 
fied that  in  view  of  the  "obstinate  rejections  by  Russia  of 
Japan's  proposals  respecting  Korea"  and  of  the  "obstinate 
refusal  of  Russia  to  enter  into  an  engagement  to  respect 
China's  territorial  integrity  in  Manchuria,"  and  in  view  of 
"Russia's  repeated  delays  to  reply  without  intelligible  rea- 
sons and  of  her  naval  and  military  activities,  irreconcilable 
with  pacific  aims,"  the  Japanese  Government  had  "no  other 
alternative  than  to  terminate  the  present  futile  negotia- 
tions." 

"In  adopting  this  course,"  so  the  Russian  Government  was 
informed,  "the  Imperial  Government  (of  Japan)  reserve  to 
themselves  the  right  to  take  such  independent  action  as  they 
may  deem  best  to  consolidate  and  defend  their  menaced  posi- 
tion, as  well  as  to  protect  the  acquired  rights  and  legitimate 
interests  of  the  Empire."^*^  Under  the  circumstances,  this 
severance  of  diplomatic  relations  between  Russia  and  Japan, 

°*  See  statement  published  in  the  Press  by  the  Japanese  Government 
on  March  3,  1904.  Translated  by  Asakawa,  pp.  352-54.  It  appears  that 
Admiral  Alexieff  advised  the  Czar  in  December,  1903,  that  the  Japanese 
were  preparing  to  send  troops  to  Korea  and  establish  a  protectorate 
over  that  country  with  the  consent  of  the  Korean  Government.  He 
warned  the  Czar  that  the  occupation  of  Korea  would  ruin  Russia's 
military  plans  and  be  a  menace  to  Port  Arthur  and  the  Russian  railway 
system  in  Manchuria.  In  accordance  with  the  Admiral's  suggestion,  and 
as  a  result  of  these  representations,  the  Czar  ordered  Admiral  Alexieflf 
to  mobilize  the  Far  Eastern  Districts  and  to  declare  a  state  of  siege 
in  Manchuria,  at  Port  Arthur,  and  at  Vladivostok,  and  generally  to 
prepare  for  war.  See  London  Times  (weekly  ed.)  for  June  2,  1905, 
P-  345- 

''Asakawa,  pp.  342-44.    Dispatch  No.  48  of  the  Correspondence. 


THE    CAUSES    OF    THE    WAR  6l 

accompanied,  as  it  was,  by  this  ominous  statement  on  the 
part  of  Japan,  amounted  to  a  threat  of  war;  and  if  the  Rus- 
sians were  not  prepared  for  the  events  of  February  8  and  9 
(the  naval  engagements  at  Chemulpo  and  Port  Arthur),  that 
is  evidence  of  culpable  negligence  on  the  part  of  the  Russians 
rather  than  proof  of  a  "treacherous"  surprise  on  the  part  of 
the  Japanese. 


CHAPTER    I 

The  Outbreak  of  War  and  the  Alleged  Violation 
OF  Korean  Neutrality 

War  is  an  abnormal  relation  between  states,  and  produces 
abnormal  conditions  affecting  the  activities  and  interests  of 
individuals  as  well.  Consequently,  its  outbreak  brings  into 
existence  a  new  set  of  rules  affecting  individuals  and  gov- 
ernments, which  largely  supplant  or  supplement  those  rights 
and  obligations  existing  in  time  of  peace.  In  view  of  this 
fact,  it  is  extremely  important  to  fix  upon  a  definite  date  for 
the  beginning  of  these  new  and  abnormal  relations  between 
neutrals  and  belligerents  on  the  one  hand  and  the  two  or 
more  belligerents  on  the  other. 

A  majority  of  the  more  recent  authorities^  on  Interna- 
tional Law  hold  that  between  belligerents  a  formal  notice  of 
intention  or  a  declaration  of  war  is  no  longer  necessary  prior 

^A  majority  of  the  older  authorities  insisted  upon  the  necessity  of  a 
declaration  in  some  form.  They  were  doubtless  influenced  by  tradi- 
tional views  or  customs  which  had  their  origin  in  the  fetial  law  of  the 
Romans  or  in  the  chivalry  and  ceremonies  of  the  Middle  Ages.  The 
Romans,  e.  g.,  were  very  strict  in  their  observance  of  certain  formalities 
connected  with  the  declaration  of  war,  and  they  largely  measured  the 
justice  or  the  injustice  of  a  war  by  the  strictness  with  which  these  for- 
malities had  been  observed. 

For  a  very  extensive  citation  of  the  older  authorities  and  historical 
examples,  see  Hall,  Treatise  on  International  Lam  (3rd  ed.),  pp.  376- 
79,  and  notes.  Especially  interesting  is  the  citation  from  Burlamaqui 
(note  on  p.  379),  who  naively  says  that  "an  enemy  ought  not  to  be  at- 
tacked'immediately  after  declaration  of  war,  'otherwise  the  declaration 
would  only  be  a  vain  ceremony.' "  This  is  a  reductio  ad  absurdum  of 
the  view  that  a  declaration  of  war  is  necessarj\ 


THE    OUTBREAK    OF    WAR  63 

or  preliminary  to  the  outbreak  of  hostilities.  "An  act  of 
hostility,  unless  it  be  done  in  the  urgency  of  self-preserva- 
tion or  by  way  of  reprisal,  is  in  itself  a  full  declaration  of 
intention;  any  sort  of  previous  declaration,  therefore,  is  an 
empty  formality  unless  an  enemy  must  be  given  time  and  op- 
portunity to  put  himself  in  a  state  of  defence,  and  it  is  need- 
less to  say  that  no  one  asserts  such  quixotism  to  be  obliga- 
tory."- Though  the  war  dates  from  the  declaration  in  case 
a  declaration  is  made  prior  to  an  act  of  overt  hostility,  never- 
theless, the  date  of  the  first  actual  or  pronounced  hostilities 
is,  in  fact,  a  better  criterion  of  the  commencement  of  a  war 
than  the  date  of  formal  declaration.  For  declaration  is 
usually  preceded  by  acts  of  hostility,  and  in  such  cases  diffi- 
cult questions  are  sure  to  arise  which  may  lead  to  great  un- 
certainty and  much  long  and  useless  controversy.^ 

Although  modern  authorities*  are  still  somewhat  divided 

^Hall,  op.  cit.,  p.  374. 

'  "In  the  eighteenth  century  declarations  were  frequentlj'  published 
several  months  after  letters  of  marque  had  been  granted,  after  general 
reprisals  had  been  ordered,  and  even  after  battles  had  been  fought ; 
and  disputes  in  consequence  took  place  as  to  whether  war  had  begun 
independently  of  the  declaration,  or  from  the  date  of  the  declaration, 
or  in  consequence  of  the  declaration,  but  so  as  to  date,  when  once  de- 
clared, retrospectively  to  the  time  of  the  first  hostilities.  As  the  legiti- 
macy of  the  appropriation  of  private  property  depends  upon  the  exist- 
ence of  a  state  of  war,  it  is  evident  that  conflicts  of  this  nature  were 
extremely  embarrassing  and,  where  different  theories  were  in  play, 
were  altogether  insoluble.  To  take  the  state  of  war,  on  the  other  hand, 
as  dating  from  the  first  act  of  hostility,  only  leads  to  the  inconvenience 
that  in  certain  cases,  as  for  example  of  intervention,  a  state  of  war  may 
be  legally  set  up  through  the  commission  of  acts  of  hostility,  which  it 
may  afterwards  appear  that  the  nation  affected  does  not  intend  to  re- 
sent by  war;  and,  as  in  such  cases  the  nation  doing  hostile  acts  can 
always  refrain  from  the  capture  of  private  property  until  the  question 
of  peace  or  war  is  decided,  the  practical  inconvenience  is  small."  Hall, 
op.  cit.,  p.  375. 

*  For  more  or  less  extensive  citations  of  the  modern  authorities,  see 
Hall,  op.  cit.,  pp.  379-81,  and  note  on  p.  380;  Calvo,  IV,  §  1906;  Pradier- 


64  THE    RUSSO-JAPANESE    WAR 

on  this  question,  the  general  practice  of  nations,  at  least 
since  the  sixteenth  century,  shows  conclusively  that  declara- 
tions of  war  prior  to  the  outbreak  of  hostilities  have  been 
comparatively  rare  and  altogether  exceptional.^     So  far  as 

Fodere,  VI,  §2673.  The  French  publicist,  Pradier-Fodere  (VI,  §2677), 
is  of  the  opinion  that  "if  declaration  is  not  an  essential  condition  of  a 
regular  war,  it  is,  at  least,  a  useful  formality  which  states  ought  not  to 
omit."  The  Russian  publicist,  De  Martens  (III,  p.  205),  thinks  that 
"neither  proclamation  nor  diplomatic  notice  are  obligatory,  provided 
that  the  state  of  relations  is  such  that  hostilities  will  not  be  a  surprise." 
Hostilities  which  constitute  a  surprise  he  characterizes  as  "brigandage 
and  piracy."  The  German  Holzendorff  {Handbuch,  IV,  §§  82-84) 
holds  neither  declaration  nor  manifesto  to  be  necessary,  although  he 
thinks  that  "a  belligerent  ought  to  give  notice  of  some  sort  if  he  can 
do  so  consistently  with  his  political  interest  and  his  military  aims." 
(The  last  two  citations  are  given  by  Hall,  note  on  p.  380.) 

French  publicists  appear  generally  to  regard  a  formal  declaration  of 
war  as  necessary,  and  to  look  upon  a  war  begun  without  such  declara- 
tion as  at  least  tainted  with  irregularity.  See  e.  g.,  Fillet,  Les  Lois 
Actuelles  de  la  Guerre,  §  31,  pp.  64-65;  Bonfils,  Manuel,  §§  1027-32; 
Despagnet,  Cours,  pp.  549  ff ;  and  Guelle,  Precis  dcs  Lois  de  la  Guerre, 

I,  ch.  I. 

'  "Most  of  the  wars  of  the  seventeenth  century  began  without  declara- 
tion, though  in  some  cases  declarations  were  issued  during  their  con- 
tinuance." Hall,  note  on  p.  ^yj.  "The  nearer  we  approach  to  modern 
times  the  rarer  do  formal  declarations  become.  There  have  been  only 
eleven  of  them  between  civilized  States  since  1700,  whereas  the  present 
century  has  seen  over  sixty  wars  or  acts  of  reprisal  begun  without 
formal  notice  to  the  power  attacked."  Lawrence,  Principles,  p.  300. 
In  a  compilation  of  cases  of  hostilities  extending  from  1700  to  the 
present  time  Colonel  Maurice,  of  the  British  army,  found  but  11  out  of 
118  instances  in  which  a  declaration  of  war  preceded  hostilities.  Snow, 
Manual,  p.  78.  In  most  cases  declarations  have,  however,  followed  the 
outbreak  of  hostilities. 

For  extensive  citations  of  historical  examples,  see  Hall,  cited  above ; 
Phillimore,  Commentaries,  HI,  Ft.  IX,  ch.  5;  Calvo,  IV,  §  1908;  Rivier, 

II,  pp.  223-28.  For  an  abstract  of  cases  ranging  from  1700  to  1870,  in 
which  hostilities  have  occurred  between  states  prior  to  declaration, 
see  Maurice,  Hostilities  without  Declaration  of  War  (1883),  and  a  re- 
view of  this  work  by  Prof.  Holland  in  the  Revue  de  Droit  International, 
1885,  No.  6,  pp.  63-65.     See  also  Dcs  Hostilites  sans  Declaration  de 


THE    OUTBREAK    OF    WAR  6$ 

the  writer  is  aware,  judges  of  prize  courts  (at  least  in  the 
United  States  and  England),  who  have  been  called  upon  to 
pass  upon  the  validity  of  captures  made  prior  to  the  declara- 
tion of  war,  are  unanimously  of  the  opinion  that  war  may 
exist  without  a  declaration. * 

The  utmost  that  nations  in  a  state  of  peace  have  a  right 
to  demand  is  that  they  shall  not  be  suddenly  surprised  or 
treacherously  attacked  without  any  intimation  or  warning 
whatsoever.  But  "the  use  of  a  declaration  does  not  exclude 
surprise" ;  it  only  "provides  that  notice  shall  be  served  an 
infinitesimal  space  of  time  before  a  blow  is  struck.  .  .  . 
The  truth  is  that  no  forms  give  security  against  disloyal  con- 
duct, and  that  when  no  disloyalty  occurs  states  always  suffi- 
ciently well  know  when  they  stand  on  the  brink  of  war.'"' 
War  is  usually  preceded  by  a  long  period  of  negotiations, 
which  generally,  although  not  necessarily,  terminates  in  an 

Guerre,  by  M.  Feraud-Giraud  in  the  same  review  for  1885,  No.  i, 
pp.  19  fF,  and  Owen,  Declaration  of  War,  1899. 

It  should  perhaps  be  noted  that  recent  wars  seem  to  have  witnessed  a 
return  to  the  older  practice,  e.  g.,  those  of  1870  and  1877.  ^he  practical 
futility  of  the  declaration  of  1877  is,  however,  shown  by  the  fact  that 
Turkish  territory  was  invaded  by  Russia  on  the  day  of  her  declaration 
of  war  on  April  24,  1877.  In  the  Chino- Japanese  War  of  1894-5,  hostili- 
ties were  begun  before  the  declaration,  and  in  our  own  recent  war  with 
Spain  war  was  formally  declared  on  April  25,  1898,  after  the  capture  of 
several  Spanish  vessels  and  the  blockade  of  the  Cuban  ports  on  the  22nd 
of  April.  The  e.xistence  of  hostilities  was  dated  back  to  the  21st  of 
April  by  the  Declaration  itself. 

•See,  e.  g.,  the  opinion  of  Lord  Stowell  in  i  Dodson,  247;  of  Sir  W. 
Scott  in  the  case  of  the  Eliza  Ann,  i  Dodson,  244;  The  U.  S.  Supreme 
Court  in  Bos  v.  Tingy,  4  Dallas,  27,  and  in  The  Prise  Cases,  2  Black. 
635;  Justice  Sprague  in  The  Amy  IVandck,  2  Sprague,  123;  Lord 
Chief  Justice  Mellish  in  the  Teutonia,  4  Privy  Council  Reports,  171  ;  and 
Judge  Locke  in  the  Panama,  87  Fed.  Rep.  927. 

'Hall  (3d  ed.),  p.  381.  See  also  Lawrence,  pp.  301-02;  Woolsey  (6th 
ed.),  pp.  i8g-90;  Walker,  The  Science  of  International  Law,  p.  242; 
Pradier-Foderc,  VI,  §  2676;  Rivier.  II.  p.  222;  Funck-Brcntano  and 
Sorel,  Precis,  p.  245;  Dc  Martens,  Traitc,  III,  p.  205. 


66  THE    RUSSO-JAPANESE    WAR 

ultimatum.  Moreover,  with  modern  facilities  for  tele- 
graphic communication,  a  complete  surprise  would  be  well- 
nigh  impossible. 

The  mere  recall  and  dismissal  of  ambassadors  or  minis- 
ters, or,  in  other  words,  the  breaking  off  of  diplomatic 
relations,  is  not  and  ought  not  in  itself  to  be  regarded  as 
equivalent  to  a  declaration  of  a  state  of  war;*  but  such  acts 
indicate  that  the  relations  between  the  states  in  question  are 
very  much  strained  or  altered,  and  they  often  form  a  sort  of 
transition  from  a  state  of  peace  to  that  of  war.  They  are 
generally  preceded  by  an  ultimatum  or  final  note,  which 
usually  prescribes  a  definite  time  within  which  a  favorable 
answer  must  be  returned  in  order  to  prevent  a  resort  to  force. 
In  such  cases  the  ultimatum  amounts  to  a  conditional  dec- 
laration of  war,  /.  e.,  conditional  upon  the  rejection  of  the 
terms  proposed,  or  a  failure  to  accept  them  within  the  time 
specified. 

The  foregoing  rules  or  customs  are  so  well  known  to 
students  of  International  Law,  and  their  practice  is  so  gen- 
erally observed  by  modern  states,  that  it  might  perhaps  be 
deemed  unnecessary  to  restate  them  here  were  it  not  for  the 
charges  of  "treachery,"  "piracy,"  "bad  faith,"  and  "breach 
of  International  Law"  which  were  made  in  certain  quarters 
— high  as  well  as  low — against  Japan  in  consequence  of  the 
Japanese  attack  upon  the  Russian  fleets  at  Chemulpo  and 
Port  Arthur  on  February  8  and  9  prior  to  the  formal  dec- 
laration of  war  against  Russia  on  February  10,  1904.  Not 
only  were  these  charges  noised  abroad  by  the  apparently 
unanimous  voice  of  the  French  and  the  Russian  Press, 
but  similar  accusations  have  been  made  by  leading  authori- 

'  Pradier-Fodere,  VI,  §  2678;  Rivier,  II,  p.  220;  Funck-Brcntano  and 
Sorel,  p.  243. 


THE    OUTBREAK    OF    WAR  ^)7 

ties  on  International  Law  in  France  and  Russia."  Most  seri- 
ous of  all,  the  Czar  himself  was  made  the  mouthpiece  of 
these  charges,  which  were  presented  to  the  whole  world 
through  the  medium  of  the  Czar's  formal  Manifesto  of 
February  lo  and  through  Count  Lamsdorff's  Circular  Note 
to  the  Powers  of  February  22,  1904.''* 

A  brief  review  of  the  facts  ought  to  convince  the  most 
prejudiced  or  the  most  skeptical  that  the  conduct  of  Japan 
in  this  matter  was  entirely  correct.  It  is  not  our  intention 
in  this  connection  to  enter  upon  a  discussion  of  the  causes  of 
this  war  with  reference  to  their  justice  or  injustice.  Inter- 
national Law,  as  such,  is  indifferent  to  causes.  It  does  not 
consider  the  justice  or  injustice  of  a  war.  From  the  pure- 
ly legal  standpoint,  all  wars  are  equally  just  or  unjust; 
or,  properly  speaking,  they  are  neither  just  nor  unjust. 
International  Law  merely  takes  cognizance  of  the  existence 
of  war  as  a  fact,  and  prescribes  certain  rules  and  regulations 
which  affect  the  rights  and  duties  of  neutrals  and  belligerents 
during  its  continuance.  The  justice  of  war  in  general  or  of 
a  certain  war  in  particular  are  questions  of  the  gravest  im- 
portance and  of  the  most  vital  interest,  but  they  belong  to  the 
domain  of  international  ethics  or  morality  rather  than  to 
that  of  International  Law.'^ 

*  See,  e.  g.,  H.  Ebrcn  and  F.  de  Martens  in  the  Revue  Gencralc  dc 
Droit  International  Public  for  March-April,  1904,  pp.  134  and  149. 

"For  these  documents,  see  London  Times  (weekly  ed.)  for  February 
12  and  26,  1904. 

"  Bhmtsclili  {Droit  International  Codifie,  5th  ed.,  §  515,  p.  293)  ex- 
presses a  diflFcrent  view.  He  says,  "War  is  just  when  International 
Law  authorizes  recourse  to  arms;  unjust  when  it  is  contrary  to  the 
principles  of  law."  He  adds  in  a  note:  "This  principle  is  not  only  a  rule 
of  morality,  it  is  a  true  principle  of  law."  He  admits,  however,  that  it 
has  no  great  practical  value,  inasmuch  as  each  of  the  belligerents  is  sure 


68  THE    RUSSO-JAPANESE    WAR 

In  order  to  justify  the  propriety  and  validity  of  the  Jap- 
anese attack  upon  the  Russian  fleets  from  the  standpoint  of 
International  Law,  it  is  enough  for  us  to  show  that  all  peace- 
ful or  diplomatic  relations  between  Japan  and  Russia  had 
been  severed  a  sufficient  time  before  the  attack,  and  under 
such  circumstances  as  to  guard  against  all  reasonable  danger 
of  surprise.  It  must  have  been  manifest  to  all  concerned 
for  months  prior  to  the  outbreak  of  hostilities  that  war  was 
inevitable  unless  important  concessions  should  be  effected  or 
a  compromise  agreed  upon,  which  neither  state  seemed  will- 
ing to  make.  Obviously  this  fact  was  realized  at  St.  Peters- 
burg as  well  as  at  Tokio,  and  the  long  Russian  delays^"  in 
answering  the  Japanese  notes  during  the  period  of  negotia- 
tion which  preceded  the  outbreak  of  hostilities  can  hardly  be 
explained  on  any  other  theory  than  that  Russia  desired  time 
for  the  completion  of  her  military  preparations  and  the  con- 
centration of  her  land  and  naval  forces. ^^  The  Russian 
reply  to  the  last  Japanese  note  of  January  13.  1904,  had  not 
been  received  at  Tokio  by  February  6.  in  spite  of  a  request 
on  the  part  of  the  Japanese  Government  for  a  prompt  re- 
sponse on  account  of  the  gravity  of  the  situation,  and  in  spite 

to  affirm  the  justice  of  its  cause,  and  because  there  is  no  judge  to  pro- 
nounce upon  the  value  of  these  assertions. 

But,  as  Funck-Brentano  and  Sorel  (Precis,  p.  232,  2nd  ed.)  say,  "It 
is  only  an  abuse  of  words,  in  relying  upon  the  law  of  nations,  to  qualify 
wars  as  just  or  unjust.  The  law  of  nations  only  considers  states  in 
their  relations  with  one  another.  .  .  .  It  is  with  wars  between  states 
as  with  combats  between  men,  they  only  begin  when  all  notion  of  recip- 
rocal right  and  justice  ceases.    .    .    .    War  is  a  political  act.    ..." 

"The  Japanese  proposal  of  August  12,  1903,  was  not  answered  by  a 
counter-proposal  until  October  3d.  The  answer  to  the  Japanese  proposal 
of  October  30th  was  delayed  until  December  11,  1903. 

"  For  evidence  on  this  head,  see  the  Japanese  reply  to  the  Russian 
charges  in  the  London  Times  (weekly  ed.)  for  March  4,  1904.  This 
reply  is  reprinted  in  Asakawa,  pp.  352-54. 


THE    OUTBREAK    OF    WAR  69 

of  the  repeated  requests  for  an  answer  on  the  part  of  Mr. 
Kurino,  the  Japanese  Minister  at  St.  Petersburg.^* 

Under  these  circumstances  the  only  matter  for  astonish- 
ment is  that  the  Japanese  Government  should  have  delayed 
so  long,  unless  it,  too,  required  more  time  for  military  prep- 
arations. It  is  therefore  no  cause  for  adverse  criticism  that 
diplomatic  relations  with  Russia  were  abruptly  severed  on 
February  6.  The  Russian  Government  was  informed  that 
"in  the  presence  of  delays  which  remain  largely  unexplained, 
and  naval  and  military  activities  which  it  is  difficult  to  rec- 
oncile with  entirely  pacific  aims,  .  .  .  the  Imperial  Gov- 
ernment (of  Japan)  have  no  other  alternative  than  to 
terminate  the  present  futile  negotiations.  In  adopting  this 
course  the  Imperial  Government  reserve  to  themsehes  the 
right  to  take  such  independent  action  as  they  may  deem  best 
to  consolidate  and  defend  their  menaced  position,  as  well  as 
to  protect  their  established  rights  and  legitimate  interests."'"' 
This  was  undoubtedly  a  sufficient  declaration  of  intention  on 
the  part  of  the  Japanese  Government,  and  if  the  Russian 
fleet  or  the  Russian  Government  allowed  themselves  to  be 
surprised  after  such  a  plain,  albeit  diplomatic,  intimation  of 
hostile  intention,  the  fault,  if  any,  can  certainly  not  be  laid 
at  the  door  of  Japan.     Russia  can  hardly  be  accused  of  such 

"  See  the  Japanese  statement  of  the  case  in  the  London  Times  (week- 
ly ed.)  for  February  12,  1904.  So  far  as  I  am  aware,  the  Russian 
Government  has  not  denied  these  facts.  The  burden  of  the  Russian 
complaint  was  that  Japan  did  not  await  the  receipt  of  the  last  Russian 
note  which,  it  is  alleged,  was  on  the  way  to  Tokio  at  the  moment  of 
the  rupture  of  diploinatic  relations.  But  it  is  not  alleged  that  this  note 
conceded  any  appreciable  portion  of  the  Japanese  demands.  For  the 
Russian  statement  of  the  case,  see  Annuairc  Diplomatique  de  I'Empiie 
de  Russe,  pp.  255  ff. 

"See  N.  Y.  Times  for  February  13.  1904.  The  italics  are  the  au- 
thor's. 


70  THE    RUSSO-JAPANESE    WAR 

ignorance  or  inexperience  of  the  methods  of  modern  diplo- 
macy as  is  implied  in  her  complaint  that  Japan  began  the 
attack  on  Port  Arthur  without  "previously  notifying  (us) 
that  the  rupture  implied  the  beginning  of  warlike  action.'"" 

The  Japanese  attack  on  the  Russian  fleets  at  Chemulpo 
and  Port  Arthur  occurred  on  February  8  and  9,^^  i.  c,  over 
two  days  after  Mr.  Kurino,  the  Japanese  Minister  at  St. 
Petersburg,  had  informed  the  Russian  Government  that 
Japan  had  decided  to  sever  diplomatic  intercourse  with  Rus- 
sia, and  that  she  reserved  to  herself  the  right  to  "take  such 
independent  action"  as  was  deemed  proper  for  the  consol- 
idation and  defence  of  her  menaced  position  and  the  protec- 
tion of  her  rights  and  interests.  Surely  there  was  less  cause 
for  the  charges  of  "surprise,"  "bad  faith,"  and  "treachery" 
than  if  Japan  had  patiently  awaited  the  Russian  note,  care- 
fully preserved  the  appearance  of  diplomatic  relations,  then 
suddenly  declared  v;ar,  and  immediately  followed  this  dec- 
laration by  an  attack  on  the  Russian  fleet.  ^^ 

At  the  same  time  Russia  also  complained  of  another  al- 
leged serious  infraction  of  International  Law  on  the  part  of 
Japan — viz.,  of  the  violation  of  the  neutrality  of  Korea.  In 
a  Circular  Note  to  the  Powers,  sent  on  February  22,  1904. 
Count  Lamsdorff  charged  Japan  with  "an  open  violation  of 
all  customary  laws  governing  the  mutual  relations  between 

"See  the  Czar's  Manifesto,  in  the  London  Times  (weekly  ed.)  for 
February  12,  1904. 

"  It  is  claimed  by  the  Japanese  that  the  first  shot  of  the  war  was  fired 
by  a  Russian  vessel,  the  Korietz,  at  Chemulpo ;  but  this  point  is  entirely 
immaterial,  inasmuch  as  it  was  Japan  that  made  the  first  aggressive 
movement. 

"  For  an  able  defense  of  Japan's  conduct  in  this  matter,  see  Law- 
rence, War  and  Neutrality  in  the  Far  East,  ch.  2.  For  the  negotiations 
and  documents  bearing  on  the  case,  see  M.  H.  Nagaoka  in  the  Revue  de 
Droit  International  for  1904,  No.  5,  VI   (deuxieme  serie),  pp.  461  ff. 


VIOLATION    OF    KOREAN'     NEITRALITY  yi 

civilized  nations.'  "Without  specifying  each  particular  vio- 
lation of  these  laws  on  the  part  of  Japan,"  he  called  the 
serious  attention  of  the  Powers  to  the  acts  committed  by  the 
Japanese  Government  with  respect  to  Korea,  the  "independ- 
ence and  integrity"  of  which  "was  recognized  by  all  the 
Powers."  In  thus  violating  the  neutrality  of  Korea,  Japan 
was  accused,  not  only  of  a  violation  of  treaties,  but  of  a 
"flagrant  breach  of  International  Law."  as  well.'"  The 
captains  of  the  three  English,  French,  and  Italian  war  vessels 
lying  in  the  harbor  of  Chemulpo  at  the  time  of  the  attack 
also  protested  "energetically"  against  "such  a  violation  of 
neutrality."'" 

There  can  be  no  doubt  but  that,  according  to  the  strict 
letter  of  the  law.  Japan  was  guilty  of  a  violation  of  one  of  the 
most  fundamental  rules  of  International  Law, — z'ic,  the 
right  of  an  independent  state  to  remain  neutral  during  a  war 
between  other  members  of  the  family  of  nations,*'  and  to 
have  its  neutrality  and  territorial  sovereignty  respected  by 
the  belligerent  states.  On  the  other  hand,  as  the  Japanese 
Government  was  careful  to  point  out  in  its  official  reply  to 

"  The  Japanese  claim,  however,  that  it  was  Russia  who  first  violated 
the  neutrality  of  Korea  by  sending  troops  across  the  Yalu  on  February 
2.     See  London  Times  (weekly  cd.)  for  April  i,  1904. 

"  The  Russian  Press  showed  considerable  irritation  over  the  fact  that 
Captain  Marshall,  the  commander  of  the  American  gunboat  ricksburg, 
did  not  join  in  this  protest  of  the  three  captains.  As  a  matter  of  fact, 
the  American  captain  was  not  asked  to  join  in  the  protest,  his  deter- 
mination to  preserve  a  strictly  neutral  attitude  being  well  known.  The 
conduct  of  Captain  Marshall  appears  to  have  been  entirely  correct,  more 
so,  in  fact,  than  was  that  of  the  other  three  captains.  For  his  reply  to 
the  charges  made  by  M.  PavloflF,  the  Russian  minister  in  Korea,  sec 
House  Doc,  58th  Congress.  3d  session  (For.  Rel..  1004).  pp.  782  flF. 

"  This  right  was  .scarcely  recognized  in  practice  before  the  modem 
period,  and  it  has  often  betn  violated  even  in  nnxlern  times;  but  it  may 
now  be  regarded  as  one  of  the  best-established  and  most  fundamental 
rules  of  International  Law. 


^2,  THE    RUSSO-JAPANESE    WAR 

the  Russian  note,  "the  maintenance  of  the  independence  and 
territorial  integrity  of  Korea  is  one  of  the  objects  of  the  war, 
and,  therefore,  the  dispatch  of  troops  to  the  menaced  terri- 
tory was  a  matter  of  right  and  necessity,  which  had  the  dis- 
tinct consent  of  the  Korean  Government."^^ 

This  seems  to  be  one  of  those  not  altogether  rare  although 
exceptional  cases  where  reasons  of  policy  or  motives  of 
national  interest,  if  not  the  necessity  of  self-preservation, 
intervene  to  prevent  a  strict  observance,  or  necessitate  a 
positive  violation  of  law.  Japan  had  long  since  included 
Korea  within  her  political  "sphere  of  influence"  or  protec- 
tion, and  Korea  was  one  of  the  main  objects  of  the  war.  It 
was,  therefore,  just  as  impossible  for  Japan  to  respect  the 
neutrality  of  Korea  after  the  opening  or  in  contemplation  of 
hostilities  as  it  would  be  impossible  for  the  United  States  to 
respect  the  neutrality  of  a  Spanish-American  state  under 
similar  circumstances,  e.  g.,  if  threatened  by  a  European 
Power.  The  complaints  of  Russia  on  this  score,  although 
theoretically  sound,  were  therefore  practically  absurd. 
Korea,  although  in  theory  sovereign  and  independent  since 
1876-82,  was  really  a  dependent  state  under  the  protection  of 
Japan. 

Russia's  real  motive  in  entering  this  protest  is  probably  to 
be  found  in  the  conclusion  of  Count  Lamsdorff's  note.  "At 
the  same  time,  the  Imperial  Government  (of  Russia)  con- 
siders it  necessary  to  issue  a  timely  warning  that,  owing  to 
Japan's  illegal  assumption  of  power  in  Korea,  the  Govern- 
ment declares  all  orders  and  declarations  which  may  be  is- 
sued on  the  part  of  the  Korean  Government  to  be  invalid." 
In  order  to  raise  her  position  in  Korea  above  that  of  a  mere 

"See  the  London  Times  (weekly  ed.)  for  March  11,  1904. 


VIOLATION    OF    KOREAN    NEUTRALITY  73 

military  occupant  on  the  one  hand  or  of  a  vulgar  conqueror 
on  the  other,  Japan  negotiated  a  treaty  with  the  Korean 
Government  in  which  she  guaranteed  the  "independence  and 
integrity  of  the  Korean  Empire"  (Art.  Ill),  and  agreed  to 
protect  Korea  against  the  "aggressions  of  a  third  Power  or 
internal  disturbances."^^ 

The  Russian  Government  claimed  that  this  treaty  was  in- 
valid because  made  under  duress."*  This  raises  a  very  in- 
teresting question  in  International  Law.  Was  the  duress 
here  alleged  of  such  sort  as  to  render  the  treaty  and  all  acts 
performed  under  its  sanction  invalid?  The  rule  which  ap- 
plies in  such  cases  is  perfectly  clear,  although  we  are  not 
fully  informed  as  to  the  facts  in  this  particular  instance. 
One  of  the  antecedent  conditions  upon  which  the  validity 
of  a  treaty  depends  is  "freedom  of  consent."  But  "the  free- 
dom of  consent,  which  in  principle  is  held  as  necessary  to  the 
validity  of  contracts  between  states  as  it  is  to  those  between 
individuals,  is  understood  to  exist  as  between  the  former 
under  conditions  which  would  not  be  thought  compatible 
with  it  where  individuals  are  concerned.  In  International 
Law  force  and  intimidation  are  i)ermitted  means  of  obtain- 
ing redress  for  wrongs,  and  it  is  impossible  to  look  upon 
permitted  means  as  vitiating  the  agreement,  made  in  conse- 
quence of  their  use,  by  which  redress  is  provided  for.  Con- 
sent, therefore,  is  conceived  to  be  freely  given  in  interna- 

"See  the  London  Times  (weekly  ed.)  for  March  4.  1904.  for  tlie  te.xt 
of  the  treaty  between  Japan  and  Korea.     See  also  Asakawa,  pp.  367-68. 

"  'J'he  Russian  Novosti  published  a  statement  from  the  Minister  of 
Foreign  Affairs  declaring  that  "Russia  does  not  consider  Korea  as  a 
belligerent  state,  but  simply  as  a  neutral  state,  acting  under  violent 
pressure  from  Japan  and  deprived  of  the  power  of  free  action."  For 
this  reason,  it  is  said.  "Russia  can  not  regard  as  valid  any  treaty  con- 
cluded by  Korea  for  the  benefit  of  Japan,  nor  any  abrogation  of  Rus- 
sian concessions."    Sec  London  Times  for  March  25,  1904. 


74  THE    RUSSO-JAPANESE    WAR 

tional  contracts,  notwithstanding  that  it  may  have  been  ob- 
tained by  force,  so  long  as  nothing  more  is  exacted  than  it 
may  be  supposed  that  a  state  would  consent  to  give,  if  it 
were  willing  to  afford  compensation  for  past  wrongs  and 
security  against  the  future  commission  of  wrongful  acts. 
And  as  International  Law  can  not  measure  what  is  due  in  a 
given  case,  or  what  is  necessary  for  the  protection  of  a  state 
which  declares  itself  to  be  in  danger,  it  regards  all  contracts 
as  valid,  notwithstanding  the  use  of  force  and  intimidation, 
which  do  not  destroy  the  independence  of  the  state  which 
has  been  obliged  to  enter  into  them.  When  this  point,  how- 
ever, is  passed,  constraint  vitiates  the  agreement,  because  it 
can  not  be  supposed  that  a  state  would  voluntarily  commit 
suicide  by  way  of  reparation  or  as  a  measure  of  protection 
to  another.  The  doctrine  is,  of  course,  one  which  gives  a 
legal  sanction  to  an  infinite  number  of  agreements,  one  of 
the  parties  to  each  of  which  has  no  real  freedom  of  will ;  but 
it  is  obvious  that  unless  a  considerable  degree  of  intimidation 
is  allowed  to  be  consistent  with  the  validity  of  contracts,  few 
treaties  made  at  the  end  of  a  war  or  to  avert  one  would  be 
binding,  and  the  conflicts  of  states  would  end  only  with  the 
subjugation  of  one  of  the  combatants  or  the  utter  exhaustion 
of  both."^^ 

In  the  treaty  between  Japan  and  Korea  above  referred  to, 
the  "independence  and  territorial  integrity"  of  Korea  was 
carefully  and  explicitly  provided  for,  so  that  there  can  be  no 
objection  to  the  validity  of  the  treaty  on  this  score. 

"The  only  kind  of  duress  which  justifies  a  breach  of  treaty 
is  the  coercion  of  a  sovereign  or  plenipotentiary  to  such  an 
extent  as  to  induce  him  to  enter  into  arrangements  which  he 

"  Hall,  op.  cit.,  3d  ed.,  pp.  325-26. 


VIOLATION'    OF    KOREAN     XKl'TRALITY  75 

would  never  ha\e  made  but  for  fear  on  account  of  his  per- 
sonal safety.  Such  was  the  renunciation  of  the  Spanish 
crown  extorted  by  Napoleon  at  Bayonne,  in  1897,  from 
Charles  IV  and  his  son,  Ferdinand.  The  people  of  Spain 
broke  no  faith  wlicn  they  refused  to  be  bound  by  it  and  rose 
in  insurrection  a.c;^ainst  Joseph  Bonaparte,  who  had  been 
placed  upon  the  throne.'"*"  So  far  as  the  writer  is  aware,  it 
is  not  alleged  that  Japan  used  such  methods  of  coercion  in 
the  case  of  this  treaty  with  Korea.*' 

At  the  very  outset  of  the  war  an  extremely  interesting 
question  arose  in  respect  to  the  proper  treatment  of  the 
sailors  of  the  Russian  vessels  (the  Kor'cta  and  the  I'ariag) 
whose  crews  had  been  rescued  at  Chemulpo  by  neutral 
cruisers  of  various  nationalities***  on  February  8.  1904.    The 

"Lawrence,  Principles,  pp.  287-88.  Cf.  Hall.  p.  3,26;  Blunt-chli, 
§  409;  Rivier,  II,  p.  55;  Bonfils-Fauchille,  §  818,  and  Dcspagnct,  §  455. 
For  an  interesting  discussion  of  Korean  neutrality,  see  Lawrence,  ll'ar 
and  Neutrality  (2d  ed.),  ch.  11. 

"  The  same  statement  can  not  be  made  in  respect  to  the  Convention 
of  November  17,  1905.  In  the  case  of  the  latter  treaty,  it  is  charged  that 
the  signatures  of  the  Emperor  of  Korea  and  of  the  Korean  ministers 
were  obtained  by  the  Marquis  Ito  and  Mr.  Hayashi,  the  Japanese  Pleni- 
potentiaries, as  a  result  of  force  and  intimidation  due  to  the  presence  of 
Japanese  soldiers.  See  London  Times  for  December  5,  1905.  This 
treaty  was  also  invalid  from  a  strictly  legal  point  of  view  for  another 
reason.  It  formally  extinguished  the  independence  of  Korea  by  trans- 
forming this  country  into  a  protectorate,  for  the  conduct  of  Korean 
foreign  affairs  was  placed  under  the  control  and  direction  of  representa- 
tives of  the  Japanese  Government.  For  the  text  of  this  treaty,  sec 
Archives  Diplomatiqucs,  .3d  scries.  Vol.  96,  p.  363.  For  an  interesting 
article  on  "The  International  Status  of  Korea,"  sec  F.  Key  in  Kcz'Uf 
G^tti'rale  de  Droit  Int.  Pub.  for  1906,  pp.  40-58. 

"These  were  the  French  cruiser  Pascal,  the  British  cruiser  Talbot, 
the  Italian  cruiser  Elba,  and  the  American  gunboat  J'iclcsburg.  The 
charge  made  by  the  Russian  newspapers  that  Captain  Marshall,  the 
commander  of  the  I'ichsburf^,  refused  to  assist  in  taking  care  of  the 
Russian  wounded  was  admitted  to  be  false  by  the  Russians  themselves. 
It  is  true  that  none  of  tlie  Russian  wouinled  were  received  on  board  the 


76  THE    RUSSO-JAPANESE    WAR 

Japanese,  who  seem  to  have  feared  that  the  rescued  sailors 
would  be  surrendered  to  the  Russians,  at  first  demanded 
their  surrender  as  prisoners  of  war;  but  the  neutral  com- 
manders objected,  and  the  British  Government  at  first  in- 
sisted upon  taking  those  in  its  possession  into  British  terri- 
tory, with  a  view  of  interning  them  until  the  close  of  the 
war,  or  until  other  arrangements  could  be  made.  The  Jap- 
anese Government,  however,  at  last  generously  consented  to 
their  release  on  parole,  and  the  rescued  sailors  were  handed 
over  to  the  Russians  outside  the  theatre  of  hostilities.  A 
wise  and  easy  solution  of  what  seemed  for  a  time  a  very 
perplexing  problem  was  thus  reached.  In  the  event  of  an 
unwillingness  on  the  part  of  the  Japanese  Government  to 
consent  to  such-  an  arrangement,  the  obligations  of  neutrality 
would  probably  have  been  best  fulfilled  by  interning  the  res- 
cued sailors  in  neutral  territory  until  the  close  of  the  war,  in 
accordance  with  Premier  Balfour's  suggestion  to  the  British 
Parliament. ^^  This  is  nov/  universally  admitted  to  be  the 
proper  course  to  pursue  in  the  analogous  case  of  an  army 
which  has  been  forced  to  retreat  into  neutral  territory.^" 
The  surrender  of  these  sailors  to  Russia  under  the  circum- 
stances would  have  furnished  a  just  cause  for  protest  on  the 

Vicksburg,  but  Captain  Marshall  had  good  reason  lor  his  action.  See 
House  Doc.  cited  in  footnote  on  p.  71,  supra. 

^  See  the  New  York  Evening  Post  for  February  25.  1904  (semi- 
weekly  ed.). 

'*  See  Art.  57  of  the  "Laws  and  Customs  of  War"  adopted  by  the 
Hague  Conference  of  1899.  Holls,  Peace  Conference,  p.  160.  The  Hague 
Conference  failed,  however,  to  agree  upon  a  proper  disposition  of  ship- 
wrecked, wounded,  or  sick  belligerents  lauded  at  a  neutral  port  or  res- 
cued by  neutral  ships  of  war.  For  a  fuller  discussion  of  this  subject, 
see  Lawrence,  War  and  Neutrality,  ch.  4;  Holls,  op.  cit.,  pp.  127-132 
and  pp.  504-506 ;  and  Latane,  "The  Use  of  Neutral  Waters  by  Belliger- 
ents" in  the  Proceedings  of  the  American  Political  Science  Association, 
Vol.  H  (1905). 


TREATMENT    OF    RESCUED    SAILORS  yj 

part  of  Japan,  and  might  have  tended  in  future  wars  either 
to  discourage  rescue  from  a  sense  of  humanity  on  the  one 
hand,  or  to  ha\e  encouraged  it  from  motives  of  partiaHty  on 
the  other.'' 

"  The  treatment  of  the  rescued  crews  of  the  Korietz  and  the  Variag 
may  prove  a  valuable  precedent  in  future  wars. 

A  different  course  was  followed  by  the  British  Government  during 
the  Civil  War,  in  the  famous  case  of  the  Decrhound — a  private  yacht 
belonging  to  the  Royal  Yacht  Association  of  England.  The  owner  of 
this  yacht,  acting  at  the  request  of  Captain  Winslow,  of  the  Kearsarge, 
helped  to  rescue  the  officers  and  crew  of  the  Alabama  upon  the  occasion 
of  the  latter's  sinking  at  the  hands  of  the  Kearsarge.  To  the  surprise 
of  Captain  Winslow,  the  Deerhound,  after  picking  up  a  certain  number 
of  men,  largely  officers  (including  Captain  Semmes)  of  the  Alabama, 
hastily  and  surreptitiously  steamed  off  with  its  precious  cargo  to  South- 
ampton. Several  of  these  men  had  already  surrendered  themselves  to 
the  Kearsarge  as  prisoners  of  war,  and  there  was  some  evidence  of  col- 
lusion between  Captain  Semmes  and  the  owner  of  the  Deerhound.  To 
be  sure,  the  Deerhound  was  a  private  yacht  instead  of  a  warship,  but 
she  seems  to  have  had  a  sort  of  semi-official  character  as  a  boat  belong- 
ing to  the  Royal  Yacht  Association.  In  any  case,  the  British  Govern- 
ment would  probably  have  best  performed  its  neutral  duties  by  intern- 
ing the  officers  and  men  of  the  Alabama  as  prisoners  of  war.  For  the 
facts  of  the  case,  see  the  Claims  Against  Great  Britain,  Vol.  Ill,  pp.  261- 
308  (ist  sess.  41st  Cong.  1869).  For  a  somewhat  different  view  of  the 
law  and  the  facts  than  that  given  above,  see  Bernard,  The  Neutrality 
of  Great  Britain  During  the  American  Ciinl  War,  pp.  429-30. 


CHAPTER    II 

The  Conduct  of  the  United  States  in  Respect  to 
Its  Neutral  Rights  and  Duties 

The  Government  and  people  of  the  United  States  are  able 
to  show  a  remarkably  clear  and  consistent  record  in  the  per- 
formance of  their  neutral  duties  toward  both  belligerents 
during  the  Russo-Japanese  War.^ 

A  loud  outcry  was  raised  by  the  Russian  Press  late  in 
February,  1904,  in  consequence  of  a  report  that  an  applica- 
tion had  been  made  to  the  United  States  by  the  Commercial 
Cable  Company  (presumably  acting  in  the  interest  of  Japan) 
for  permission  to  connect  Japan  with  Guam  and  the  Philip- 
pine Islands  (and  thus  with  the  rest  of  the  world)  by  means 
of  a  submarine  cable,  it  being  feared  that  the  two  existing 
cables  connecting  Nagasaki  with  Shanghai  would  be  cut  by 
the  Russians.  In  the  latter  case  Japan  would  have  been  cut 
off  from  telegraphic  communication  with  the  rest  of  the 
world. 

In  Russia  the  view  prevailed  that  the  granting  of  such  a 

permit  by  the  United  States  would  constitute  a  breach  of 

neutralitv,  although  there  seems  to  have  been  no  official 

> 
mtimation  or  expression  of  opinion  to  this  effect  on  the  part 

of  the  Russian  Government.     Our  Government  appears  to 

have  been  similarly  non-committal.     In  reply  to  an  informal 

^  The  same  may  be  affirmed  of  England,  but  can  hardly  be  said  of 
Germany  and  France.  The  charges  against  Germany  and  France  will 
be  considered  in  subsequent  chapters. 


THE    CONDUCT    OF    THE    I  NITEU    STATES  79 

inquiry  by  Count  Cassini,  the  Russian  ambassador  at  Wash- 
ington, as  to  the  truth  of  this  report,  Secretary  Hay  denied 
that  the  United  States  Government  was  considering  sucli  an 
apph'cation.^ 

The  legahty  or  propriety  of  laying  such  a  cable  would 
probably  depend  upon  the  question  of  fact  as  to  whether  it 
were  an  enterprise  in  which  the  animus  vcndcndi  or  the  ani- 
mus bclligcratidi  predominated.  During  the  Spanish-Amer- 
ican War  in  1898,  the  Britisli  authorities  refused  a  request 
from  the  United  States  to  lay  a  cable  between  Manila  and 
Hong  Kong,  such  a  cable  being  obviously  intended  primarily 
for  military  use. 

In  the  earlier  period  of  the  war  there  were  frequent  com- 
ments in  the  Russian  newspapers  on  what  was  called  "Amer- 
ican meddling."  These  charges  seem  to  have  been  inspired 
mainly  by  the  pro-Japanese  tone  of  the  American  press,  and 
also  by  the  interest  manifested  l)y  tiic  Government  and  [)eo- 
ple  of  the  United  States  in  the  fate  of  China.  It  goes  with- 
out saying  that  exi)ressions  of  opinion  and  .sympathy  on  the 
part  of  neutral  individuals,  or  of  the  new.spapers,  or  even  of 
public  meetings,  in  behalf  of  either  belligerent  do  not  con- 
stitute a  violation  of  neutrality.  No  government  can  be 
recjuired  to  interfere  with  such  free  expression  of  opinion  or 
.sympathy,  and  it  is  not  desirable  in  a  land  animated  by  the 
traditions  and  spirit  of  freedom  that  such  an  attempt  should 
be  made.  It  is  a  mere  confusion  of  itleas  to  pretend,  as 
some  people  in  this  country  seemed  to  imagine  during  the 
war.  that  becau.se  it  was  the  duty  of  our  Government  to  ob- 
serve the  obligations  of  neutrality,  it  was  also  our  duty  as  a 
people  to  .'ifTcct  indifTcinici'  toward  both  belligerents  in  the 

'  Sec  Chicago  Record-Herald  for  March  2,  1904. 


80  THE    RUSSO-JAPANESE    WAR 

strug"gle.^  "Neutrality,"  says  a  well-known  French  pub- 
licist, "is  not  impassibility.  It  merely  implies  abstention 
from  external  acts  which  may  favor  one  of  the  belligerents 
during  hostilities ;  it  does  not  exclude  an  expression  of 
opinion  upon  the  politics  (which  may  be  either  praiseworthy 
or  blamable)  of  such  a  state.  In  certain  cases,  one  should 
even  regard  it  as  a  human  and  international  duty  to  sympa- 
thize with  a  state,  the  rights  of  which  are  injured  by  an  abuse 
of  force,  and  to  morally  encourage  it."* 

American  sympathy  for  Japan  appears  also  to  have  sought 
expression  in  several  practical  ways. 

For  example,  it  was  announced  in  February,  1904,  that 
sixty  residents  of  Chicago  (among  them  a  number  of  vet- 
erans of  the  Spanish- American  War)  intended  to  sail  for 
the  Orient  with  the  intention  of  enlisting  in  the  Japanese 
army,  in  spite  of  the  announcement  by  Japan  to  the  effect 
that  she  desired  no  foreign  troops,  and  numerous  applica- 
tions are  said  to  have  been  made  by  American  citizens  for 
permission  to  enter  the  military  and  naval  service  of  Japan. 

It  was  also  reported  in  February,  1904,  that  there  was  a 
movement  on  foot  in  Atlanta,  Georgia,  to  procure  a  warship 
and  present  it  to  the  Japanese  Government. 

At  a  mass  meeting  held  in  New  York  on  February  12, 
1904  (at  which  the  majority  of  those  present  were  Japanese, 
but  which  was  also  attended  by  a  number  of  American  citi- 
zens), a  committee  reported  in  favor  of  raising  a  Japanese 
war-fund  of  $5,000,000  by  loans,  gifts  and  contributions  to 
the   Red   Cross   Society.     The  question   was   raised   as  to 

'  Slightly  adapted  from  an  editorial  in  the  London  Times  (weekly 
ed.)  for  March  7,  1904.  For  some  official  utterances  of  American  states- 
men on  this  head,  see  Wharton's  Digest,  III,  §  389. 

*  Kleen,  Lois  et  Usages  de  la  Neutralite,  t.  I.,  p.  218. 


THE    CONDUCT    OF    THE    UNITED    STATES  8l 

whether  American  sympathizers  could  contribute  to  the  Jap- 
anese war-fund  without  violating  the  neutrality  laws  of  the 
United  States  or  the  obligations  of  International  I^iw.  The 
Japanese  Consul-General,  Mr.  Uchida.  is  reported  to  have 
said  that  he  thought  this  point  had  not  been  definitely  settled, 
although  he  declared  that  he  would  be  ready  to  receive  con- 
tributions ;  but  he  was  of  the  ojMuion  that  there  could  be  no 
legal  objection  to  the  purchase  of  Japanese  war  bonds  as  an 
investment,  and  he  said  that  there  was  no  question  but  that 
Americans  could  donate  as  much  as  they  liked  to  the  Jap- 
anese Red  Cross  Society.* 

In  a  communication  dated  May  5.  1904.  Secretary  Hay 
notified  Mr.  Takahira  that  the  Commandant  at  the  Mare 
Island  Navy  Yard  had  been  instructed  not  to  forward  to 
Japanese  serving  in  the  United  States  Navy  certain  circu- 
lars, contained  in  envelopes  sent  out  from  the  Consulate- 
General  of  Japan  at  New  York,  soliciting  subscriptions  to 
Japanese  bonds,  contributions  to  the  relief  fund  for  Japanese 
soldiers  and  sailors,  and  aid  for  the  Red  Cross  Society  of 
Japan.  "While  Japanese  in  the  United  States  doubtless 
have  the  right  to  sub.scribe  to  Japanese  bonds  or  to  con- 
tribute to  relief  and  Red  Cross  Society  funds  in  Japan,  yet  it 
is  undesirable  that  such  contributions  should  be  sought 
through  the  naval  official  channels  of  this  Ciovernment."" 

The  successful  floating  of  large  Japanese  war  loans  in 
England  and  the  United  States,  as  also  the  successful  float - 

*  For  a  report  of  this  meeting,  sec  New  York  Times,  for  Fcbruar>-  l,\, 
1904.  Mr.  Takahira.  the  Japanese  minister  at  Washington,  is  said  to 
have  received  numerous  ofTers  of  large  contributions  to  the  Japanese 
war  fund  from  Americans.  Ihc  writer  docs  not  know  whether  any  of 
these  were  accepted. 

'  House  Doc.  of  the  58th  Congress.  3d  .session  ( Foreign  Relations. 
1904).  pp.  427-428. 


82  THE    RUSSO-JAPANESE    WAR 

ing  of  still  larger  Russian  loans  in  France,  also  raises  the 
question  as  to  the  legality  of  such  loans. 

As  to  the  legality  of  foreign  enlistment,  the  acceptance  on 
the  part  of  a  British  subject,  without  a  license  from  His 
Majesty,  of  any  commission  or  engagement  from  a  bellig- 
erent state  is  forbidden,  under  penalty  of  fine  and  imprison- 
ment, by  the  British  Foreign  Enlistment  Act  of  1870, 
whether  such  engagement  takes  place  within  or  without  His 
Majesty's  dominions;  but  our  own  neutrality  laws^  merely 
prohibit  foreign  enlistment  or  the  acceptance  of  a  foreign 
commission  within  the  territory  or  jurisdiction  of  the  United 
States.  But  the  municipal  laws  of  a  state  are  not  necessarily 
the  correct  measure  or  standard  of  its  international  obliga- 
tions, and  it  is  at  least  doubtful  whether  the  requirements 
of  International  Law  in  the  matter  of  enlistment  within 
neutral  jurisdiction  are  even  as  stringent  as  are  those  of  our 
Neutrality  Act  of  1818.^  "It  is  not  the  duty  of  a  neutral 
government  to  prohibit  the  enlistment  of  its  subjects  in  the 
service  of  a  foreign  belligerent,  such  enlistment  taking  place 
beyond  its  territorial  jurisdiction.  The  neutral  ruler  may 
punish  by  municipal  penalty  a  subject  so  engaging,  but,  in 
default  of  treaty  stipulation,  he  is  under  no  international  ob- 
ligation so  to  do."^ 

The  levying  of  troops  within  the  borders  of  a  neutral 

'  They  also  prohibit  any  person  from  hiring  any  person  to  enlist  or 
from  hiring  another  to  go  beyond  the  jurisdiction  of  the  United  States 
with  intent  to  be  enlisted.  It  would  not  be  a  violation  of  our  neutrality 
laws  merely  to  leave  this  country  with  intent  to  enlist.  U.  S.  v. 
Kazinski,  2  Sprague  7.  For  official  opinions  on  the  subject  of  enlist- 
ment, see  Wharton's  Digest,  III,  §392. 

°  The  requirements  of  International  Law  are  certainly  not  as  stringent 
as  are  those  of  the  British  Foreign  Enlistment  Act  of  1870. 

"  Walker,  The  Science  of  International  Law,  p.  446. 


THE    CONDUCT    OF    THE    UNITED    STATES  83 

State,  or  "anythinj:^  like  recruiting  on  a  large  scale."'"  is  dis- 
tinctly forbidden  in  modern  times  by  the  law  of  nations,  and 
the  failure  to  prevent  these  things  would  constitute  a  serious 
breach  of  neutrality;  hut  on  the  other  liand.  "a  state  is  not 
expected  to  take  precautions  against  the  commission  of 
microscopic  injuries.""  "It  is  not  implied  for  a  moment 
that  the  government  of  a  neutral  country  is  obliged  to  keep 
watch  over  each  unit  of  its  population,  and  (that  it)  can  be 
made  responsible  if  a  man  here  and  another  there  crosses  its 
frontier  for  the  purpose  of  taking  service  with  a  bellig- 
erent."'* Resides,  although  there  is  no  r'}^ht  of  expatriation 
known  to  International  Law,  it  is  ahvays  open  to  any  indi- 
vidual to  renounce  his  nationality  and  enroll  himself  as  a 
citizen  or  to  enter  the  service  of  another  state.  The  failure 
of  the  United  States  Government  to  prevent  the  departure 
of  a  certain  number  of  her  citizens  for  the  Orient  and  the 
enlistment  of  these  in  the  Japanese  army  could  not  have  been 
made  a  serious  ground  for  complaint  on  the  part  of  Russia, 
and  such  conduct  on  the  part  of  our  citizens  would  not  even 
have  been  a  violation  of  (jur  own  neutrality  laws.  On  the 
other  hand,  our  Government  could  not  have  permitted  the 
levying  or  recruiting  of  troops  in  this  country  by  agents  or 
friends  of  the  Japanese  Government. 

Our  neutrality  laws  also  forbid  any  one  from  fitting  out 
and  arming,  or  knowingly  being  C(»ncerned  in  the  procuring, 
furnishing,  fitting  out  or  arming  of  any  vessel,  witli  intent 
that  such  vessel  shall  be  employed  in  belligerent  service. 
Since  the  incorporation  of  this  principle  in  the  Treaty  of 
Washington  in  1S71  and  the  Geneva  .Aw.ird  of  187J.  no  one 

'"  I^wrcncc,  Principles,  p.  533. 
"  Hall,  Treatise,  p.  601. 
"  Lawrence,  op.  cil..  p.  533. 


84  THE    RUSSO-JAPANESE    WAR 

is  likely  much  long-er  to  deny  that  this  rule  forms  an  integral 
part  of  International  Law  ;  and  the  proposal  to  present  Japan 
with  a  war-vessel,  if  made,  was  on  the  face  of  it  absurd. 
The  Government  of  the  United  States  would  have  been 
bound  by  its  international  obligations  to  have  prevented  the 
fitting  out,  arming,  and  the  equipping  within  its  jurisdiction, 
as  well  as  the  departure,  of  such  a  vessel,  and  every  contrib- 
utor to  such  a  fund  would  have  been  liable  to  arrest  and  pun- 
ishment for  a  violation  of  the  Neutrality  Act  of  181 8. 

"The  duties  of  neutrals  happily  do  not  impose  any  checks 
upon  the  humane  impulses  of  the  citizens  of  neutral  coun- 
tries, or  upon  the  practical  expression  of  their  sympathies 
in  case  of  the  wounded,  the  widows,  and  the  fatherless;"^" 
and  there  can  be  no  sound  objection  to  contributions  to  any 
Red  Cross  Society,  at  least  on  the  part  of  neutral  individuals. 

As  to  the  question  whether  American  sympathizers  with 
Japan  had  a  right  to  make  gifts  or  voluntary  contributions 
to  a  fund  set  aside  for  the  purpose  of  assisting  Japan  to  carry 
on  the  war,  the  case  is  by  no  means  so  clear.  There  can, 
however,  be  no  real  question  as  to  the  legality  of  the  purchase 
of  war-bonds  as  an  investment.  Of  course,  it  would  be  a 
flagrant  breach  of  International  Law  if  such  a  loan  were  in 
any  way  to  be  advanced,  supported,  or  guaranteed  by  a  neu- 
tral government.  Although  the  legality  of  loans  by  neutral 
individuals  to  belligerent  states  has  been  denied  by  some 
eminent  publicists,^*  such  a  position  is  not  in  conformity 

"  From  an  editorial  in  the  London  Times  for  February  13,  1904. 

"£.  g.,  by  Bluntschli,  §  768;  Phillimore,  III,  §  151;  Calvo,  §§  2628- 
30  (5th  ed.)  ;  and  Halleck  (Baker's  ed.),  II,  p.  195.  The  cases  De  IVutc 
V.  Hendricks,  Common  Pleas,  1824,  9  Moore,  586;  Thompson  v.  Powles, 
Chancery,  1828,  2  Simon,  194;  and  Kennet  v.  Chambers,  U.  S.  Supreme 
Court,  14  Howard  38,  upon  which  the  view  of  these  publicists  seems  to 
be  founded,  merely  go  to  the  extent  of  holding  that  contracts  to  raise 


THE    CONDUCT    OF    THE    UNITED    STATES  85 

with  the  practice  of  nations.  "Money  is  a  form  of  mer- 
chandise, and  neutral  individuals  constantly  trade  in  it  with 
belligerent  governments.  It  can  be  transferred  with  the 
greatest  ease,  far  more  easily,  in  fact,  than  other  commodi- 
ties. Commercial  transactions  in  it  could  not  be  prevented, 
except  by  an  amount  of  espionage  and  interference  which 
would  outrage  human  nature  and  render  all  trade  impossible. 
No  war  of  any  magnitude  takes  place  without  a  free  resort 
by  the  combatant  powers  to  neutral  money  markets.  The 
stock  in  loans  issued  to  provide  funds  for  the  conflict  is 
bought  and  sold  in  other  countries,  just  as  freely  as  shares 
in  foreign  mines  and  railways.  .  .  .  When  practice  points 
entirely  in  one  direction,  it  is  idle  to  pit  against  it  a  so-called 
rule  based  on  nothing  better  than  the  statement  that  gold  is 
a  prime  necessity  in  war.  It  certainly  is;  and  nearly  all 
agree  that  a  belligerent  may  lawfully  confiscate  any  supplies 
of  it  he  may  find  in  a  neutral  vessel  on  its  way  to  the  enemy. 
Money  is  contraband  of  war.  .-md  mu<t  be  treated  like  other 
articles  in  the  same  category.  The  neutral  trader  in  it  lends 
at  his  own  risk,  but  he  commits  no  breach  of  the  common 
law  of  nations  by  lending,  and  his  government  is  under  no 
obligation  to  attempt  the  impossible  task  of  preventing 
him."'" 

loans  for  the  purpose  of  aiding  communities  whose  belligerency  or  in- 
dependence has  not  been  recognized  are  illegal  or  invalid.  This  is  a 
good  example  of  the  excessive  deference  which  is  sometimes  paid  to  the 
decisions  of  judges  whose  opinions  are  often  mere  obiter  dicta  or  arc 
given  a  more  extended  application  than  they  deserve.  In  dealing  with 
the  decisions  of  courts  we  should  always  remember  that  they  arc  neces- 
sarily of  limited  application,  both  as  to  subject-matter  and  in  respect 
to  nationality.  We  should  never  forget  that  International  Law  is  based 
upon  the  general  pr.ictice  of  nations.  This  is  one  of  the  gravest  ob- 
jections to  the  teaching  of  International  Law  mainly  or  exclusively  by 
the  use  of  the  "case  system." 
"Lawrence,  PriucifU-s.  pp.  522-2;^.     Cf.  Hall.  p.  598. 


86  THE    RUSSO-JAPANESE    WAR 

But  it  is  claimed  that  gifts  or  voluntary  subscriptions 
stand  upon  a  different  footing  from  ordinary  loans.  In 
1823  the  law  officers  of  the  British  Crown,  in  response  to  an 
inquiry  from  the  British  Cabinet  in  respect  to  the  legality  of 
certain  funds  which  were  being  raised  in  behalf  of  the  Greek 
revolutionists  whose  belligerency  had  been  recognized  by 
the  British  Government,  gave  an  opinion  to  the  effect  that 
"voluntary  subscriptions  of  the  nature  alluded  to  were  in- 
consistent with  neutrality  and  contrary  to  the  law  of  na- 
tions."^® In  commenting  upon  this  opinion,  Lawrence 
says :  "Even  in  deciding,  and  rightly  deciding,  that  volun- 
tary gifts  and  subscriptions  were  illegal,  the  British  law 
officers  took  care  to  add  that  the  belligerent  against  whom 
they  were  directed  would  not  have  the  right  to  consider  them 
as  constituting  an  act  of  hostility  on  the  part  of  the  neutral 
government.  Moreover,  they  abstained  from  recommend- 
ing a  prosecution  of  the  subscribers,  upon  the  ground  that  it 
would  be  almost  certain  to  fail."^^ 

But  of  what  use,  we  may  ask,  is  a  prohibition  in  Interna- 
tional Law  which  can  not  be  made  effective,  or  a  rule  for  the 
non-enforcement  of  which  a  neutral  state  can  not  be  held 
responsible  ?  The  only  apparently  sound  argument  in  favor 
of  such  a  rule  which  occurs  to  the  writer  is  one  based 
upon  the  doctrine  of  intent.  It  might  be  urged  that  we 
ought  to  distinguish,  as  in  the  case  of  the  sale,  construction, 
or  exportation  of  a  war-ship,  between  a  bona  fide  commer- 
cial transaction  and  an  intent  to  render  assistance  to  one  of 

"For  the  documents,  see  Halleck  (Baker's  ed.)  II,  pp.  195-97.  But 
with  respect  to  loans,  the  learned  lawyers  declared  that  "if  entered  in- 
to merely  with  commercial  views,  we  think,  according  to  the  opinion  of 
writers  on  the  law  of  nations  and  the  practice  which  has  prevailed, 
they  would  not  be  an  infringement  of  neutrality." 

"  Lawrence,  op.  cit.,  pp.  523-24. 


THE    CONDUCT    OF    THE    UNITED    STATES  87 

the  belligerents.  But  the  rules  of  International  Law  have 
fortunately  not  been  devised  to  satisfy  the  demands  of  logic 
or  of  any  system  of  classification,  and  the  doctrine  of  intent, 
at  least  as  applied  to  ships  of  war/"  is  one  of  very  doubtful 
value  and  validity.  For,  as  an  able  writer  has  well  said,  "in 
international  wrongs  .  .  .  the  intent  is  not  the  thing 
chiefly  or  primarily  regarded."^" 

So  far  as  can  be  ascertained,  the  people  and  Government 
of  the  United  States  fully  discharged  their  neutral  obliga- 
tions toward  both  belligerents  during  the  war.  President 
Roosevelt's  Proclamation  of  Neutrality,  issued  on  February 
10,  1904.  was  more  than  usually  full  and  explicit,  and  it  took 
advanced  ground  on  all  important  questions.  In  accord- 
ance with  the  terms  of  our  neutrality  laws,  the  acceptance  of 
commissions  and  enlistment  in  the  military  or  naval  service 
of  either  belligerent  were  strictly  forbidden.'*"  In  accord- 
ance with  the  requirements  of  International  Law  as  well  as 
of  our  neutrality  laws,  it  also  prohibited  "the  fitting  out  and 
arming  of  any  ship  or  vessel  with  intent  that  such  ship  or 
vessel  shall  be  employed  in  the  service  of  either  belligerent." 
as  also  the  "increasing  or  augmenting  of  the  force  of  any 
ship  of  war,  cruiser,  or  armed  vessel  in  the  service  of  either 
of  the  said  belligerents."  For  the  same  reasons  it  pro- 
hibited the  preparing  or  setting  on  foot  of  any  military  ex- 
pedition or  enterprise  against   the  territory  of  either  bel- 

"  In  respect  to  the  construction,  sale  and  exportation  of  ships  of  war, 
International  Law  would  probably  gain  in  efficiency  as  well  as  clearness 
if  these  acts  were  altogether  forbidden.  It  is  highly  probable  that  this 
is  now  the  rule.  But  this  is  a  point  which  will  be  more  fully  discussed 
in  a  subsequent  chapter. 

'*  Bernard,  The  Neutrality  of  Great  Britain,  p.  398. 

"  As  has  been  noted  above,  the.sc  would  not,  strictly  speaking,  neces- 
sarily be  ofTenses  in  the  eyes  of  International  Law. 


88  THE    RUSSO-JAPANESE    WAR 

ligerent,  and  it  forbade  the  use  of  our  ports  or  territorial 
waters  for  any  military  purpose. 

The  President's  Proclamation  also  directed  the  enforce- 
ment of  the  two  twenty-four-hour  rules,  viz.,  the  rule  re- 
quiring that  vessels  belonging  to  either  belligerent  and  enter- 
ing a  neutral  port  during  the  war  be  required  to  leave  within 
twenty- four  hours  after  their  arrival,  except  in  case  of  neces- 
sity, and  the  rule  which  provides  that  an  interval  of  at  least 
twenty-four  hours  must  elapse  between  the  departure  from 
a  neutral  port  of  vessels  belonging  to  opposing  belligerents. 
These  rules  are  now  so  generally  observed  by  neutral  states 
that  they  are  in  all  probability  in  process  of  becoming  a  part 
of  the  law  or  practice  of  nations,  if,  indeed,  they  do  not 
already  deserve  this  description.  The  same  may  be  said  of 
two  other  requirements,  likev^'ise  inserted  in  the  President's 
Proclamation  and  now  generally  observed  in  the  practice  of 
nations,  to  the  effect  that  ships  of  war  belonging  to  either 
belligerent  shall  only  be  permitted  to  take  in  a  supply  of  coal 
at  any  of  our  ports  sufficient  to  take  them  to  the  nearest  home 
port,'^  and  that  the  same  vessel,  after  having  once  been  fur- 
nished with  coal,  shall  not  receive  another  supply  at  any  of 
our  ports  within  three  months,  unless  she  shall  in  the  mean- 
time have  entered  a  port  of  the  government  to  which  she 
belongs."^ 

"'  The  British  Proclamation  of  Neutrality  adds,  "or  to  some  nearer 
named  neutral  destination." 

"  It  is  perhaps  too  much  to  say  that  these  are  rules  of  International 
Law  at  the  present  time,  but  they  are  undoubtedly  in  process  of  rapidly 
becoming  so.  They  have  been  incorporated  into  many  of  the  recent 
Neutrality  Proclamations,  at  least  in  those  of  the  United  States  and 
Great  Britain. 

The  rule  limiting  the  stay  of  a  belligerent  war-vessel  to  twenty-four 
hours,  except  in  case  of  necessity,  also  appears,  c.  g.,  in  the  recent  Neu- 
trality Proclamations  of  China,  Denmark,   Norway  and  Sweden,  Italy 


THE    CONDUCT    OF    THE    UNITED    STATES  89 

In  a  subsequent  Executive  Order.-''  President  Roosevelt 
warned  all  officials  of  the  Government,  whether  civil,  naval, 
or  military,  not  only  to  observe  all  (obligations  of  neutrality 
during  the  present  war  between  Japan  and  Russia,  but  "also 
to  abstain  from  either  action  or  speech  which  can  legiti- 
mately cause  irritation  to  either  of  the  combatants."  This 
proclamation  is  said  to  have  produced  a  good  effect  in  Russia 
and  to  have  somewhat  allayed  the  feelings  of  irritation  of 
the  Russian  Government  antl  people  against  the  United 
States.  Although  doubtless  an  act  of  wisdom  and  discretion 
on  the  part  of  our  President,  this  adtlitional  i)roclamation 
was  not  necessary  from  the  point  of  view  of  our  international 
obligations,  and  it  can  hardly  be  said  to  have  been  binding 
upon  the  majority  of  those  to  whom  it  was  addressed. 

If  the  United  States  and  Great  Britain  can  show  a  re- 
markably clear  and  consistent  record  in  the  performance  of 
their  neutral   duties  during  the   Russo-Japanese   War.   the 

and  Tlii:  Netherlands.  Denmark  and  Norway-Sweden  also  strictly 
limit  the  supply  of  coal  in  neutral  waters.  In  Norway-Sweden  a  num- 
ber of  ports  and  fjords  were  entirely  closed  to  the  entry  of  belligerent 
warships.  For  the  various  Neutrality'  Proclamations  issued  after  the 
outbreak  of  the  Russo-Japanese  War,  see  House  Doc.  of  the  58th 
Congress,  3rd  session  (I^'or.  Rel.),  pp.  14-36,  and  Kcz'ue  Gcucralc  dc 
Droit  Int.  Pub.,  t.  XI  (1904),  Documents,  pp.  1-18. 

It  seems  always  to  be  assumed  in  current  discussions  that  these  rules 
are  part  and  parcel  of  International  Law.  Where  modern  governments 
as  well  as  the  general  public  are  willing  to  take  such  advanced  ground, 
it  would  seem  to  be  unbecoming  for  publicists  to  lag  too  far  bebinti. 
This  is  especially  true  of  the  rule  limiting  the  supply  of  coal  in  neutral 
ports.  In  view  of  the  supreme  importance  of  coal  under  conditions  of 
modem  naval  warfare,  there  can  scarcely  be  any  question  but  that  a 
very  limited  supply  only  shouM  be  furnished  to  belligerent  vessels  at 
neutral  port*;.  Hut  this  subject  will  be  discussed  more  fully  in  a  subse- 
quent chapter.     See  infra,  ch.  7. 

^  Printed  in  House  D<h\.  58th  Congress.  3d  Session  (For.  Rel.).  1904. 
p.  185. 


90  THE    RUSSO-JAPANESE    WAR 

same  can  scarcely  be  affirmed  of  Germany  and  France.  The 
complaints  which  were  directed  especially  against  Germany 
will  be  discussed  in  the  next  chapter.-* 

"  For  the  charges  against  France,  see  infra,  ch.  7. 


CHAPTER    III 

The  Construction.  Sale,  and  Exportation  by  Neu- 
trals  OF    Warships,    Submarines,    and   Other 
Vessels  Intended  for  Belligerent  Service 

The  charges  against  Germany  raise  some  very  difficult 
and  delicate  questions  which  are  inseparably  connected  with 
a  great  historical  controversy.  The  most  im[x)rtant  of  these 
charges  arc  that  the  German  Government  failed  to  prevent 
(if,  indeed,  it  did  not.  directly  or  indirectly,  encourage)  the 
sale  to  Russia  of  a  number  of  transatlantic  steamers  belong- 
ing to  its  Auxiliary  Xavy,  and  that  it  permitted  the  exporta- 
tion overland  of  torpedo  boats  to  Russian  territory. 

Soon  after  the  beginning  of  the  war  the  charge  was  freely 
circulated  in  the  newspapers,  and  was  even  made  on  the  floor 
of  the  German  Reichstag.'  that  the  Russian  Government 
had  purchased  several  vessels  (  notably  the  Fiirst  Bismarck, 
of  the  Hamburg-American  Line)  belonging  to  a  great  Ger- 
man transatlantic  line,  whose  vessels  are  auxiliary  cruisers 
of  the  German   Navy.     In  reply  to  the  strictures  of  llerr 

'  By  Hcrr  lubol.  the  famous  leader  of  the  Socialists.  Sec  N.  V. 
Times  for  April  15,  1904.  For  other  reported  sales,  see.  «•.  g.,  London 
Times  (weekly  ed.)  for  April  15  and  May  13.  and  N.  Y.  Times  for 
May  II.  It  was  also  reported  that  Japan  had  bought  eight  steamers 
belonging  to  the  North  German  Lloyd  Co.,  but  this  report  was  officially 
denied  by  the  Japanese  Government.  It  seems  certain,  however,  that 
a  considerable  number  of  auxiliary  cruisers  of  the  German  Govern- 
ment belonging  to  the  North  German  Lloyd  and  the  Hamburg-.Vmcri- 
can  Comp.inies  were  ptirchased  by  Russia,  equipped  in  Ru.ssian  ports, 
and  sent  out  to  prey  upon  neutral  commerce  in  tin-  >.iminur  of  1904. 


92  THE    RUSSO-JAPANESE    WAR 

Bebel,  who  maintained  that  "such  sales  accompHsh  indi- 
rectly the  reinforcement  of  the  Russian  Navy,"  Chancellor 
von  Biilow  is  reported  to  have  claimed  that,  "according  to 
the  principles  of  International  Law  hitherto  prevailing,  the 
sale  of  the  vessels  of  a  private  firm  to  a  foreign  state  was 
admissible."  "At  any  rate,"  he  declared,  "the  question  is  a 
doubtful  one."  He  admitted  that  "the  principle  of  neutral- 
ity forbids  a  neutral  state  from  giving  direct  or  indirect 
support  to  either  belligerent  through  furnishing  ships  for 
war  transportation  purposes."  However,  "in  the  case  of  the 
Russian  transports,  it  was  not  to  a  state,  but  to  private  firms 
that  the  vessels  were  sold.  There  could  not  be  any  question 
of  taking  sides  against  Japan,  since  she  also  had  full  liberty 
to  buy  vessels  from  Germany."^ 

It  was  also  charged  on  the  floor  of  the  German  Reichs- 
tag,^ as  well  as  in  the  newspapers,  that  the  German  Govern- 
ment permitted  the  exportation  overland  of  a  number  of  tor- 
pedo boats  and  destroyers  for  the  use  of  the  Russian  Navy. 
It  was  charged  that,  for  the  purpose  of  disguising  these 
transactions,  "the  several  parts  of  the  vessels  are  being  ex- 
ported as  half-finished  manufactures  and  put  together  in 
Libau,  Russia,"  whither  a  large  number  of  German  workmen 
had  been  sent.  It  was  also  asserted  that  these  submarine 
boats  were  originally  built  for  the  German  Government, 
which  refused  to  take  them  because  the  terms  of  the  con- 
tract {i.  c,  the  stipulations  as  to  time  limit)  under  which 
they  were  built  had  not  been  strictly  observed. 

It  appears,  however,  that  Germany  was  not  the  only  coun- 

^  For  reports  of  these  somewhat  puzzling  utterances,  see  N.  Y. 
Times  and  Chicago  Tribune  for  April  15,  1904. 

*  By  Herr  Bernstein,  the  anti-Bebel  Socialistic  leader.  See,  e.  g.. 
N.  Y.  Times  for  May  5,  and  editorials  in  N.  Y.  Tribune  for  May  14 
and  Hartford  Courant  for  May  5. 


VESSELS    INTENDED    FOR    BELLIGERENT    SERVICE  93 

try  in  vvliich  Russian  agents  were  busy  in  making  and  solicit- 
ing contracts  for  the  purchase  or  construction  of  vessels  for 
the  use  of  Russia  in  the  war,  but  that  Japanese  agents  were 
similarly  active  in  other  countries  as  well.  Germany  seems, 
however,  to  have  been  the  most  flagrant  offender  in  these 
respects. 

It  was  reported  early  in  June,  1904,*  that  Russia  had  or- 
dered five  armored  cruisers  to  be  built  at  Trieste,  but  this 
report  was  afterwards  contradicted  by  the  Vienna  corre- 
spondent of  the  London  Times.  Russia  was  also  said  to 
have  purchased  a  number  of  fast  cargo  vessels  in  England, 
with  a  view  to  their  alteration  for  use  as  transports,'^  antl 
Premier  Balfour  publicly  justified  such  sales.  At  a  meeting 
of  a  section  of  the  London  Chamber  of  Commerce  held  on 
August  25,  1904,  he  said  :  "There  can  be  no  doubt  that  mer- 
chant ships  may  be  sold  by  neutrals  to  any  government,  and 
that  that  government  may  turn  these  ships  into  cruisers  if 
they  please."® 

It  was  also  stated  that  several  new  battleships  had  been 
ordered  by  Japan  in  England  prior  to  the  beginning  of  the 
war,  and  that  these  were  in  process  of  construction^  in  April. 
1904.  Several  new  ones  are  said  to  have  been  ordered  later 
in  the  year.*  In  May,  1904,  the  Russian  and  Japanese  Gov- 
ernments were  reported  to  be  in  sharp  competition  for  the 
purchase  of  transports  in  Holland  and  Belgium."  and  re- 
peated and  persistent  rumors  were  current  to  the  effect  that 

'Chicago  Tribune,  June  i,  1904. 

•  N.  Y.  Times,  May  28,  1904. 

'London    Times    (weekly   ed.)    for   Sept.   2,    1904.     Premier    Balfour 
admitted  that  one  of  the  vessels  hought  hy  Russia  was  a  British  ship. 
'  Chicago  Record-Herald.  April   10,  1904. 
'  N.  Y.  Times,  Aug.  13,  1904. 

•  N.  Y.  Times,  May  25,  1904. 


94  THE    RUSSO-JAPANESE    WAR 

agents  of  both  Russia  and  Japan  were  busy  negotiating  for 
the  purchase  of  cruisers  belonging  to  several  South  Amer- 
ican states,  more  particularly  those  of  Chile  and  the  Argen- 
tine Republic. ^°  It  was  reported  at  St.  Petersburg  on  Sep- 
tember 20,  1904,  that  four  warships  purchased  from  the 
Argentine  Republic  had  arrived  at  Libau,  but  the  sale  of 
Argentine  warships  was  flatly  denied  by  Seiior  Betbader,  the 
Minister  of  Marine  at  Buenos  Ayres.^^  It  was  also  vaguely 
rumored  at  one  time  that  Turkey  was  purchasing  ships  on 
Russia's  account. ^^ 

Nor  is  this  all.  It  seems  that  both  Russian  and  Japanese 
agents  were  at  work  in  the  United  States.  It  was  reported 
in  May,  1904,  that  a  contract  for  the  construction  of  four 
Lake  submarine  boats  destined  for  service  in  the  Japanese 
Navy  during  the  v\^ar  had  been  awarded  the  Newport  News 
Shipbuilding  Company,  of  Newport  News,  Virginia.^ ^  In 
June  a  submarine  torpedo  boat,  the  Protector,  was  shipped 
as  cargo  on  board  the  Norwegian  steamer  Fortuna,  which 
sailed  from  New  York  in  June,  bound  nominally  for  Cork.^* 
It  was  generally  supposed  at  the  time  that  the  real  destina- 
tion of  this  vessel  was  Japan,  and  a  leading  Russian  news- 

'"  See  especially  H.  W.  Wilson  in  the  London  and  the  New  York 
Times  for  May  26,  1904.  The  Chilian  Congress  is  said  to  have  refused 
a  very  high  price  offered  by  Japanese  or  Russian  agents  for  six  war- 
ships. The  St.  Petersburg  correspondent  of  the  London  Telegraph 
claimed  to  have  learned  that  an  unpublished  report  from  Admiral 
Witthoeft  asserted  that  the  Japanese  fleet  contained  several  warships 
formerly  belonging  to  the  Chilian  navy.  But  these  vessels  may  have 
been  purchased  before  the  outbreak  of  the  war,  as  were  several 
cruisers  belonging  to  the  Argentine  Republic.  Such  sales  are  per- 
fectly legal. 

"  See  N.  Y.  Times,  Sept.  21  and  22,  1904. 

"  N.  Y.  Times,  June  13,  1904. 

"N.  Y.  Times,  May  11,  1904. 

"  See  N.  Y.  Sun  for  June  10  and  14,  1904. 


VESSELS    INTENDED    FOR    BELLIGERENT    SERVICE  95 

paper  (the  Novoc-Vremya)  called  upon  the  United  States 
Government  to  explain  why  she  had  been  allowed  to  leave 
the  territory  of  the  United  States  ;^°  but  the  Protector  finally 
turned  up  in  Kronstadt,  Russia,  early  in  July.'" 

Later,  in  July,  1904,  another  submarine  boat,  the  Fulton, 
was  reported  to  have  arrived  at  Kronstadt  and  to  be  under- 
going- tests  in  the  Neva.  The  Fulton  had.  it  appears,  been 
purchased  from  the  Holland  Construction  Company  and  had 
been  shipped  from  Newport  in  the  latter  part  of  June  on  the 
deck  of  the  Menantic.^''  Acting  Secretary  of  State  Loomis 
is  reported  to  have  made  the  following  statement  in  regard  to 
this  matter:  "This  Government  will  take  no  action.  Under 
a  ruling  made  some  years  ago  by  the  State  Department,  a 
smaller  vessel  shipped  on  a  larger  vessel,  as  in  the  case  of  the 
Fulton,  is  contraband  of  war.  Therefore,  any  person  who 
ships  or  buys  contraband  does  so  at  the  risk  of  capture  by 
either  belligerent.  Japan,  in  other  words,  could  have  seized 
this  Fulton  as  contraband  of  war.  Japan  has  made  no  pro- 
test to  this  Government,  so  far  as  I  know.  The  general 
principle  is  that  the  owner  of  the  contraband  must  take  all 
the  risks.  If  the  Fulton  had  been  rigged  out  here  and  a 
crew  put  aboard  of  her,  it  would  have  been  an  entirely  dif- 
ferent question.  The  United  States  would  not  have  per- 
mitted it.  as  a  neutral  country.'"* 

After  the  shipment  of  the  Protector  and  the  Fulton  to 
Russia,  there  were  frequent  and  persistent  rumors  of  the 
sale,  construction,  or  exportation  of  torpedo  craft  in  or  from 
the  United  States  to  or  iov  both  belligerents.     One  report. 

"Chicago  Tribune,  June  12,  1904. 
"  N.  Y.  Times,  July  8,  1904. 
"  N.  Y.  American.  July  i6,  1904. 
"N.  Y.  American,  July  16,  1904. 


96  THE    RUSSO-JAPANESE    WAR 

c.  g..  spoke  of  a  Russian  order  for  thirty  submarines  of  the 
Protector  type,  and  another  of  an  order  from  Japan  of  fifty 
such  boats  of  the  Holland  type.^''  Similar  orders  were  said 
to  have  been  placed  in  Germany  and  Austria-Hungary. 

The  failure  of  the  British  Admiralty  Office  in  October, 
1904,  to  prevent  the  delivery  of  the  torpedo  boat  destroyer 
Carol i)ic  into  the  hands  of  a  Russian  agent  aroused  some 
severe  criticism  in  England,  and  was  made  the  subject  of 
editorial  comment  in  the  London  Timcs^^  But  it  was  al- 
leged by  her  builders,  Messrs.  Yarrow  &  Co.,  that  the  Caro- 
line was  bought  from  them  as  a  yacht  and  fitted  up  as  such. 
They  claimed  that  there  was  no  armament  of  any  kind  on 
board  when  the  vessel  left  their  yard  on  October  6,  and  that 
very  consideraljle  alterations  would  have  been  necessary  in 
order  to  fit  her  as  a  torpedo  boat."^  Although  the  sale  of  the 
vessel  was  reported  to  the  British  Admiralty  the  day  after  it 
was  made,  we  are  not  aware  that  any  evidence  was  produced 
which  would  tend  to  show  that  the  British  Government  had 
knowledge  of  the  purpose  for  which  this  yacht  was  to  have 
been  used. 

These  reports,  which  are  drawn  from  the  newspapers,  may 
be  somewhat  wanting  in  accuracy  and  authenticity,  but, 
assuming  that  they  are  substantially  true,  they  may  serve  as 
the  background  for  a  discussion  of  the  following  questions : 
whether  the  construction,  sale,  and  exportation  by  neutral 

"  New  York  dispatch  to  the  London  Times  for  October  13,  1904. 

^  N.  Y.  Times  and  London  Times  for  December  3,  1904.  It  appears, 
however,  that  the  British  Foreign  Office  had  stopped  the  sale  of  a 
similar  vessel  to  a  Paris  firm  two  months  previously  on  the  ground  that 
it  might  fall  into  the  hands  of  Russia  or  Japan. 

"  For  the  alleged  facts  in  this  case,  see  London  Times  (weekly  ed.) 
for  December  2,  1904,  p.  772.  For  a  summary  of  the  letter  from 
Messrs.  Yarrow  &  Co.,  see  London  Times  (weekly  ed.)  for  December 
9,  1904,  p.  795. 


VESSELS    INTENDED    FOR    BELLIGERENT    SERVICE  97 

States  and  individuals  of  warships,  torpedo  craft,  and  otiier 
vessels  adapted  to  warlike  use  and  intended  for  belligerent 
service,  constitute  a  violation  of  neutral  obligations;  and 
whether  a  neutral  state  can  be  held  responsible  in  such  cases. 

It,  of  course,  goes  without  saying  that  the  direct  sale  of 
a  war  vessel  by  a  neutral  state  to  either  belligerent  would  be 
a  gross  breach  of  neutrality,  for  which  ample  redress  or 
reparation  ought  at  once  to  be  demanded,  and,  if  necessary, 
exacted  by  the  injured  state.*" 

Since  the  settlement  of  the  famous  ".\labama  Case"  by 
the  Treaty  of  Washington  in  1871  and  the  Geneva  Aw^ard 
of  1872,  there  can  scarcely  be  room  for  doubt  that  a  neutral 
state  may  be  held  responsible  in  damages  if  its  Government 
knowingly  permits  the  fitting  out,  arming  or  equipping^' 
within  its  jurisdiction,  or  the  departure  from  its  territ(jry  of 
any  vessel  intended  for  belligerent  service.  The  First  Rule 
of  the  Treaty  of  Washington  declares  that  "a  neutral  state 
is  bound  to  use  due  diligence  to  prevent  the  fitting  out.  arm- 
ing, or  equipping  within  its  jurisdiction  of  any  vessel  which 
it  has  rea.sonable  ground  to  believe  is  intended  to  cruise  or 
to  carry  on  war  against  a  Power  w^ith  which  it  is  at  peace, 
and  also  like  diligence  to  prevent  the  departure  from  its 
jurisdiction  of  any  vessel  intended  to  cruise  or  carry  on  war 

"Such  sales  by  Chile  to  both  belligerents  were  rcportcil  (luring  the 
war  between  China  and  Japan  in  1895.  See  an  article  by  I'rofcssor 
Holland  in  Fortnightly  Review  for  June,  1895,  Vol.  63,  p.  913.  The 
be.st  modern  usage  not  only  forbids  this  practice,  but  scrutinizes  very 
carefully  all  sales  of  vessels  made  by  a  state  during  a  war.  I-'or  exam- 
ples, see  Lawrence,  War  and  Neutrality,  pp.  177  flf.  Modern  usage  docs 
not,  however,  forbid  the  sale  of  such  vessels  prior  to  the  outbreak  of 
war. 

"  The  arming  and  equipping  of  such  a  vessel,  as  also  the  augmenta- 
tion of  the  force  of  a  war  vessel  in  a  neutral  port,  had  been  prohibited 
by  International  Law,  as  well  as  by  the  l^ritish  and  American  Neu- 
trality Acts,  for  many  years. 


98  THE    RUSSO-JAPANESE    WAR 

as  above,  such  vessel  having  been  specially  adapted,  in  whole 
or  in  part,  within  such  jurisdiction  to  warlike  use."^* 

Although  the  principles  incorporated  into  this  rule  have 
not  won  the  unreserved  approval  of  all  English  publicists, ^^ 
and  have  not  been  formally  accepted  by  the  Powers,^®  they 

**  For  the  Three  Rules  of  the  Treaty  of  Washington,  see,  e.  g., 
Wharton's  Dig.  Ill,  p.  630.  It  is  now  also  generally  recognized  that 
third  powers  owe  similar  obligations  toward  established  or  recognized 
governments  which  are  engaged  in  a  civil  war,  or  in  a  struggle  with 
insurrectionists  or  revolutionists.  See  the  rules  adopted  by  the  Institute 
of  International  Law  in  the  Annuaire  for  1900. 

^ E.  g.,  Hall  (§  225  and  notes)  and  Lawrence,  Principles  (§§  262  and 
263).  Hall,  although  he  insists  that  this  is  not  the  law,  was  of  the 
opinion  that  such  a  usage  is  in  course  of  growth.  He  seems,  moreover, 
to  have  looked  upon  such  a  rule  or  usage  as  healthy  and  desirable,  if  it 
be  not  based  upon  the  doctrine  of  intent,  in  place  of  which  he  suggests 
the  alternative  principle  of  the  character  of  the  vessel.  Lawrence  thinks 
"the  question  is  still  far  from  settlement."  He  says  that  "the  old  prin- 
ciples have  been  thoroughly  discredited  and  the  maritime  Powers 
have  come  to  no  agreement  upon  new  ones."  That  the  First  Rule  of 
the  Treaty  of  Washington  is  probably  a  rule  of  International  Law  is 
admitted  by  Walker  {Manual,  §  65),  "provided  a  fair  interpretation 
be  accorded  to  the  phrase  'due  diligence'."  "The  general  consensus  of 
opinions  of  publicists,  with  some  dissent  in  England,  is  that  they  (the 
Three  Rules  of  the  Treaty  of  Washington)  are  a  correct  statement  of 
existing  International  Law."    Foster,  American  Diplomacy,  p.  429. 

"'  The  United  States  and  Great  Britain  agreed,  according  to  the  terms 
of  the  Treaty  of  Washington,  to  abide  by  these  rules  in  their  future 
relations  with  each  other,  and  to  invite  other  maritime  Powers  to 
accede  to  them,  but  such  an  invitation  has  never  been  issued.  The 
failure  to  invite  or  secure  the  adhesion  of  the  maritime  Powers  to 
these  rules  does  not,  however,  destroy  their  validity  or  impair  the 
value  and  importance  of  the  decision  of  the  Geneva  Board  of  Arbitra- 
tion as  a  precedent.  Additions  to  International  Law  are  usually  the 
result  of  a  natural  growth  rather  than  of  formal  legislation,  and  if 
all  such  additions  had  to  await  the  formal  sanction  of  the  Powers, 
there  would  be,  comparatively  speaking,  little  growth  or  progress.  If 
the  decisions  of  national  prize  courts  constitute  an  important  source  of 
International  Law,  how  much  greater  should  be  the  value  as  prece- 
dents of  the  decisions  of  International  Courts  of  Arbitration. 

Although  the  value  and  importance  of  the  decision  of  the  Geneva 
Board  of  Arbitration  as  a  precedent  can  scarcely  be  called  into  ques- 


VESSELS    INTENDED    FOR    BELLKiERENT    SERVICE  <)() 

may  now  be  regarded  as  forming  an  integral  and  important 
part  of  the  correct  practice  of  International  Law.  They 
have,  generally  speaking,  found  favor  in  the  eyes  of  conti- 
nental jurists,*'  and  they  were  adopted,  although  in  some- 
what altered  language,  by  the  Institute  of  International  Law 
in  1875.^**  They  have  long  since  been  incorporated  in  the 
Neutrality  and  Foreign  Enlistment  Acts  of  the  United 
States  and  Great  Britain,-"  and  the  British  Foreign  Enlist- 
ment Act  of  1870.  which  has  been  pronounced  by  a  leading 

tion,  there  is  still  some  difference  of  opinion  in  regard  to  the  correct 
meaning  of  the  phrase  "due  diligence";  there  are  serious  objections 
to  the  American  doctrine  of  intent;  and  all  of  the  decisions  of  the 
Geneva  arbitrators  (or  rather  the  reasoning  on  which  some  of  these 
decisions  were  based)  have  not  been  fully  accepted  on  all  sides. 

"See,  e.  g.,  Calvo  in  Revue  dc  Droit  International,  VI,  pp.  453  ff; 
Bluntschli  in  the  same  review.  II,  pp.  452  ff;  Calvo.  Le  Droit  Int., 
IV,  §  2,623;  Bluntschli,  Droit  International  CodiHc,  §§  763,  765,  and 
notes;  Fiore  (Antoine's  trans.).  Ill,  §  1,555;  Rivier,  II,  §68,  pp. 
405  ff;  and  Kleen,  Les  Lois  et  Usages  de  la  Ncutralite,  I.  p.  315. 

*  Tableau  Generate  de  I'Institut,  pp.   161-63.    Cf.  Annuaire  for   1S77, 

P-  139- 

"The  United  States  Neutrality  Acts  of  1794  and  1818  and  the  British 
Foreign  Enlistment  Acts  of  1819  and  1870.  The  British  Act  of  1819, 
like  the  United  States  Acts  of  1794  and  1818,  prohibited  the  fitting  out, 
as  well  as  the  arming,  of  any  vessel  with  intent,  etc. ;  but  the  adminis- 
trative and  preventive  powers  (znc,  those  requiring  bond  and  author- 
izing detention  for  probable  cause)  of  the  tenth  and  eleventh  sections 
of  the  United  States  Act  of  1818  were  omitted  in  the  British  Act  of 
1819.  The  evidence  required  in  order  to  convict  under  the  British  Act 
of  1819  had  to  be  sufficient  to  satisfy  a  jury  of  the  probable  violation 
of  the  provisions  of  the  statute,  and  such  evidence  was,  of  course,  ex- 
tremely difficult  to  obtain.  The  defects  in  the  British  .'\ct  of  1819  were 
probably  due  to  lack  of  effective  procedure  or  a  want  of  proper  admin- 
istrative machinery,  rather  than  to  .nny  lack  of  good  intention  on  the 
part  of  the  legislature.  To  those  administrative  defects  there  was  added 
a  certain  inertness  or  indifference  in  the  execution  of  the  law.  if  not 
of  positive  sympathy  with  the  Southern  Confederacy,  on  the  part  of  the 
governing  classes  of  England,  which  lamed  the  energies  of  the  British 
Government  and  caused  its  failure  to  »;trictly  observe  its  obligations  of 
neutrality  during  our  Civil  War. 


lOO  THE    RUSSO-JAPANESE    WAR 

authority  to  be  "perhaps  the  best  and  fairest  expression  of 
the  modern  rule  anywhere  to  be  found  in  pubhc  law,''""  goes 
at  least  one  step  farther  than  our  own  Neutrality  Act  and  the 
Treaty  of  Washington.  It  prohibits  not  only  the  commis- 
sioning, equipping,  and  dispatching,  but  also  the  building  or 
construction  of  "any  ship  with  intent  or  knowledge  or  hav- 
ing reasonable  cause  to  believe  that  the  same  shall  or  will  be 
employed  in  the  military  or  naval  service  of  any  foreign 
state  at  war  with  any  friendly  state."^^ 

True  it  is  that  a  long  line  of  American  jurists  and  states- 
men have  held,  in  the  language  of  Judge  Story,^-  that  "there 
is  nothing  in  our  laws,  or  in  the  law  of  nations,  that  forbids 
our  citizens  from  sending  armed  vessels,  as  well  as  muni- 
tions of  war,  to  foreign  ports  for  sale.  It  is  a  commercial 
adventure  which  no  nation  is  bound  to  prohibit,  and  which 
only  exposes  the  persons  engaged  in  it  to  the  penalty  of  con- 
fiscation.'" The  American  vievv'  that  vessels  built  or  sent 
out  solely  wath  the  animus  vendendi  are  mere  contraband  of 

*"  Snow,  Cases,  p.  438.    Cf.  Scott's  edition,  p.  720. 

"  §  8  of  the  British  Foreign  Enlistment  Act  of  1870.  See  33  and  34 
Vict.  go.  For  a  convenient  abridgment  of  the  British  and  American 
Neutrality  Acts,  see  Scott's  edition  of  Snow's  Cases,  pp.  692-95. 

"In  the  Santissima  Trinidad,  U.  S.  Supreme  Court,  1827,  7  Wheat. 
283.  For  a  digest  of  leading  American  cases  involving  a  breach  of  our 
neutrality  laws,  see  Dana's  Wheaton,  note  215,  pp.  543-557.  For  opinions 
of  American  statesmen  and  judges,  see  Wharton's  Dig.  Ill,  §§  393  and 
396.  See  especially  the  opinions  of  Secretary  Clay  and  those  of  Judges 
Betts  and  Nelson  in  the  case  of  the  Meteor.  Secretary  Clay  was  of  the 
opinion  that  "if  the  neutral  show  no  partiality;  if  he  is  as  ready  to 
sell  to  one  belligerent  as  the  other ;  and  if  he  take,  himself,  no  part  in 
the  war,  he  can  not  be  justly  accused  of  any  violation  of  his  neutral 
obligations."  But  then  Mr.  Clay  does  not  seem  to  have  been  abso- 
lutely sure  that  it  was  a  violation  of  neutrality  for  the  head  of  a  state 
to  sell,  to  a  belligerent,  ships  of  war  completely  equipped  and  armed 
for  battle.  Mr.  Clay,  Secretary  of  State,  to  Mr.  Tacon,  Wharton's  Dig. 
Ill,  p.  521. 


VESSELS    INTENDED    FOR    BELLIGERENT    SERVICE        lOI 

war,  but  that  vessels  fitted  out  or  dispatched  with  an  animus 
belligcrandi  constitute  in  effect  a  proximate  hostile  expedi- 
tion which  it  is  the  duty  of  the  neutral  government  to  pre- 
vent, if  possible,  by  the  use  of  a  reasonable  diligence,  is  one 
which  was  long  insisted  upon,  especially  by  American  states- 
men, judges,  and  publicists,  and  this  doctrine  still  holds  a 
place  in  some  important  works  on  International  Law.^' 

But  this  view  can  scarcely  be  longer  maintained  in  the 
face  of  the  First  Rule  of  the  Treaty  of  Washington,  and  of 
the  increasingly  sensitive  and  ever-growing  sense  of  neutral 
obligations  on  the  part  of  modern  nations.  As  one  of  our 
leading  American  authorities.  Dr.  Freeman  Snow,  has  well 
said :  "In  considering  this  question,  it  should  be  remem- 
bered that,  by  the  introduction  of  steam  as  the  motive  power 
of  ships,  and  of  iron  and  steel  as  the  material  of  their  con- 
struction, the  conditions  of  maritime  warfare  have  been  very 
radically  changed.  What  might  have  been  a  reasonable  rule 
as  applied  in  the  time  of  sailing  ships  might  now.  in  the  age 
of  swift  ironclads,  be  intolerably  oppressive.  In  the  cases  of 
the  Santissima  Trinidad,  U.  S.  v.  Quincy,  and  the  Meteor, 
the  courts  were  dealing  with  small  sailing  vessels,  which  had 
been  converted  into  privateers,  the  possession  of  which  by 
one  or  the  other  belligerent  made  very  little  difference  in  the 
general  result  of  the  stniggle ;  whereas,  the  possession  of  an 
ironclad  ship  might  well  turn  the  scale  one  way  or  the  other, 
as  indeed  it  did  in  the  war  between  Chile  and  Peru,  in  1880- 
188 1.  This  great  power  of  inflicting  injury  uix)n  one  of  the 
belligerents,  it  is  fair  to  say.  ought  not  to  be  permitted  to 

"  The  best  and  most  authoritative  statement  of  this  view  is  by  Dana. 
See  Dana's  Wheaton,  note  215,  p.  563.  A  recent  defense  of  this  view 
may  be  found  in  Taylor,  Public  International  Law,  Pt.  V,  ch.  2. 


I02  THE    RUSSO-JAPANESE    WAR 

neutral  citizens,  and  the  neutral  nation  is  alone  in  a  position 
to  restrain  them. 

"In  view  of  these  facts,  it  is  believed  that  the  doctrine  set 
up  by  the  United  States  Neutrality  Act  and  by  the  Federal 
Courts,  that  the  'intent'  of  the  owner  or  shipbuilder  is  the 
criterion  by  which  his  guilt  or  innocence  is  to  be  judged,  is 
wholly  inadequate;  it  would  not  for  a  moment  stand  the  test 
of  the  rule  of  'due  diligence'  as  applied  by  the  Geneva 
tribunal."^* 

The  American  doctrine  of  intent  has  also  been  justly  and 
severely  criticised  by  a  number  of  English  writers.  Walker^ '^ 
points  out  that  it  "leaves  open  to  fraud  a  wide  and  open 
door."  He  continues :  "Who  may  know  the  intent  of  a 
crafty  and  secret  mind  ?  A  thousand  tricks  and  devices  may 
be  employed  to  disarm  suspicion.  An  unarmed  vessel  may 
be  dispatched  from  a  neutral  port,  arms  and  men  from  an- 
other, and  the  intent  with  which  these  elements  were  pre- 
pared and  gathered  together  may  only  become  apparent  on 
their  combination  at  some  spot  far  beyond  the  bounds  of  the 
neutral  jurisdiction."  Lawrence^^  says  :  "Nothing  is  more 
difficult  to  prove  than  intentions.  They  have  frequently  to 
be  inferred  from  actions  of  an  ambiguous  character.  More- 
over, the  two  intents — that  of  selling  and  that  of  making 
war — may  co-exist  in  the  same  mind."  Bernard^^  declares  : 
"In  international  wrongs  .  .  .  the  intent  is  not  the  thing 
chiefly  or  mainly  regarded ;  and  in  international  wrongs  of 
this  particular  class  the  only  intent  and  the  only  inadvertance 
which  are  really  material  are,  Hrst,  that  hostility  in  the  per- 

^  Snow's  Cases,  note  on  "The  Three  Rules  of  the  Treaty  of  Wash- 
ington" on  pp.  437-38.    Cf.  Scott's  Cases,  p.  720. 
^^  Science  of  International  Lazv,  p.  500. 
^^  Principles,  p.  548. 
^^  Neutrality  of  Great  Britain  during  the  American  Civil  War,  p.  389. 


VESSELS    INTENDED    FOR    BELLIGERENT    SERVICE        IO3 

sons  who  constitute  or  direct  the  expecHtion  which  makes  it 
noxious  instead  of  harmless ;  and  secondly,  that  connivance 
or  neghgence  on  the  part  of  the  neutral  government  which 
makes  the  nation  responsible  for  the  noxious  enterprise." 
Dana,^^  the  leading  champion  of  the  doctrine  of  intent,  ad- 
mits that  "the  act  is  open  to  great  suspicions  and  abuse,  and 
the  line  may  often  be  scarcely  traceable."  HalP®  remarks 
upon  this  passage :  "It  is  eminently  inadvisable  in  matters 
which  may  lead  to  international  controversy  to  adopt  as  the 
test  of  the  character  of  an  action  anything  so  indeterminate 
as  to  be  'often  scarcely  traceable.'  No  intent  other  than  that 
which  is  inferred  from  acts  of  a  Ijroadly  marked  character 
can  be  safely  so  used." 

The  complexity  of  this  doctrine  of  intent  and  the  fine  dis- 
tinctions to  which  it  has  led  in  practice  may  be  seen  by  con- 
sulting the  case  of  the  U.  S.  v.  Qiiiucy  (Supreme  Court  of 
the  U.  S.,  1832.  6  Peters  445).  In  this  case  a  distinction 
was  made  between  a  fixed  rmd  j^esent  intent  on  the  one  hand 
and  a  conditional  or  contingent  intent  on  the  other.  It  was 
held  that  if  the  intent  was  to  send  the  vessel  in  question  to 
the  West  Indies  in  search  of  funds  with  which  to  complete 
her  armament,  with  no  present  or  fixed  intention  of  preying 
upon  the  commerce  of  a  friendly  state,  but  with  a  mere 
conditional  or  contingent  intent  or  wish  to  fit  her  out  after 
her  arrival  there,  it  was  not  an  illegal  transaction. 

On  the  other  hand,  the  older  English  doctrine  to  the  effect 
that  a  ship  adapted  for  belligerent  use  is  a  mere  article  of 
contraband  unless  she  leaves  the  neutral  port  in  a  condition 
capable  of  committing  hostilities  the  moment  she  enters 
uj)on  her  voyage  was  wholly  unsatisfactory  .and  absurdlv 

"  Note  215  to  Whcaton. 

"Treatise  (3d  cd.),  p.  619,  note.    C{.  Lawrence,  o/>.  ci(.,  p.  548. 


I04  THE    RUSSO-JAPANESE    WAR 

inadequate.  This  view  presupposed  innocence  on  the  part 
of  the  owner  or  shipbuilder  unless  the  vessel  was  at  least 
partly  armed  and  equipped  in  the  neutral  port.  This  was 
in  substance  the  doctrine  laid  down  in  1863  in  the  case  of 
the  Alexandria  (Att.  Gen.  v.  Sillem,  2  Hurlstone  and  Colt- 
man,  Excheq.  Rep.  431)  by  Chief  Baron  Pollock  and  Baron 
Bramwell.*" 

There  has  also  been  considerable  controversy  as  to  the 
true  meaning  of  the  phrase  "due  dilig-ence."  The  American 
contention  at  Geneva  was  that  it  meant  diligence  "commen- 
surate with  the  emergency  or  with  the  magnitude  of  the 
results  of  negligence."  The  British  case  set  forth  that  "due 
diligence  on  the  part  of  the  sovereign  government  signifies 
that  measure  of  care  which  the  government  is  under  an 
obligation  to  use  for  a  given  purpose.  This  measure,  when 
it  has  not  been  defined  by  international  usage  or  agreement, 
is  to  be  deduced  from  the  nature  of  the  obligation  itself,  and 
from  the  considerations  of  justice,  equity,  and  general  ex- 
pediency on  which  the  law  of  nations  is  founded."  A  more 
vague  and  unsatisfactory  definition  than  this  can  scarcely  be 
imagined.  The  Geneva  arbitrators  adopted  in  substance  the 
American  definition,  although  couched  in  somewhat  different 
language.  They  held  that  due  diligence  should  be  "in  exact 
proportion  to  the  risks  to  which  either  of  the  belligerents 
may  be  exposed  from  a  failure  to  fulfill  the  obligations  of 
neutrality  on  their  part." 

This  definition  has  been  criticised*^  on  the  ground  that  it 
accepts  the  principle  of  a  "changing  standard"  of  neutral 
obligations,  and  "imposes  different  degrees  of  responsibility 

**0n  the  Alexandra,  see  especially   Bernard,   Neutrality,  pp.   353-54 
and  note,  and  Walker,  op.  cit.,  p.  499. 
"  E.  g.,  by  Lawrence,  Principles,  pp.  538-540. 


VESSELS    INTENDED    FOR    BELLIGEREXT    SERVICE        IO5 

upon  different  neutrals  in  the  same  war,  and  thus  destroys 
that  impartiahty  which  is  the  essence  of  neutral  duty."  But 
it  is  doubtful  whether  any  definition  wliich  has  been  or  which 
could  be  framed  would  be  wholly  free  from  difficulty  or  to 
which  serious  objection  might  not  be  made.  Lawrence  sug- 
gests that  "the  kind  and  amount  of  diligence  which  a  strong 
and  careful  government  would  use  to  put  down  smuggling 
ought  to  be  used  by  neutral  states  to  fulfill  the  obligations  of 
their  neutrality."  This  suggestion  would  certainly  seem  to 
furnish  a  good  practical  working  rule  or  standard  of  neutral 
obligations,  but  it  may  be  doubted  whether  even  this  rule 
would  give  us  the  precise  and  absolute  standard  which 
Lawrence  seems  to  be  in  search  of.  Certainly  some  account 
should  also  be  taken  of  the  "emergency"  and  of  the  "risks" 
or  "magnitude  of  the  results  of  negligence."  For  example, 
the  same  degree  or  amount  of  diligence  would  scarcely  be 
required  in  the  case  of  a  small  submarine  boat  as  in  the  case 
of  a  large  warship  or  of  a  number  of  these.*"' 

"  For  a  severe  criticism  of  the  definition  of  "due  diligence"  adopted 
by  a  majority  of  the  arbitrators  at  Geneva,  see  an  article  by  Rolin 
Jacquem3ais  in  the  Revue  dc  Droit  Int.,  VI,  pp.  567  flf.  For  citations 
from  the  opinions  of  the  Geneva  arbitrators,  see  Wharton's  Dig.  Ill 
402a  and  Moore's  History  of  Arbitration,  IV,  ch.  68.  For  a  full  and 
complete  history  of  the  "Alabama  Case"  and  the  Geneva  Award,  see 
U.  S.  Diplomatic  Correspondence  for  the  years  1863-1871  ;  Papers  Re- 
lating to  till'  Treaty  of  Washington;  Case  of  Great  Britain  with  Ap- 
pendix; Claims  of  the  U.  S.;  Case  of  the  U.  S.,  etc.  For  a  good 
abridgement  of  the  proceedings  of  the  Geneva  Board,  see  Moore  on 
Arbitration,  I,  ch.  14.  For  a  good  short  history  of  the  "Alabama 
Case,"  see  Walker,  Science  of  International  Laxc,  pp.  458-502,  and 
Kleen,  Les  Lois  et  Usages  dc  la  Ncutralitc,  I,  pp.  285-316.  For  an  ex- 
cellent summary  of  the  controversy  from  the  British  point  of  view,  see 
Bernard's  Historical  Account  of  the  Neutrality  of  Great  Britain  during 
the  American  Civil  War.  For  a  summary  of  the  controversy  from  the 
American  point  of  view,  see  Cushing's  Treaty  of  Washington.  See 
also  Balch,  The  Alabama  Arbitration,  1900. 


Io6  THE    RUSSO-JAPANESE    WAR 

In  view  of  the  unsatisfactory  and  inadequate  character  of 
the  older  body  of  doctrine,  would  it  not  be  well  to  take  a 
step  or  two  even  beyond  the  First  Rule  of  the  Treaty  of 
Washington  and  broadly  assert  that  a  neutral  state  is  bound 
to  use  due  diligence  {i.  c.,  a  kind  and  degree  of  diligence 
reasonably  sufficient  under  the  circumstances)  not  only  to 
prevent  the  fitting  out,  arming  or  equipping  within  its  juris- 
diction and  departure  from  its  territory  of  any  vessel  in- 
tended for  the  use  of  either  belligerent,  but  also  the  con- 
struction, sale  and  exportation  of  any  warship  whatsoever 
for  or  to  any  other  than  a  bona  fide  neutral  purchaser?  Nay, 
would  it  not  be  well  to  go  still  farther  and  insist  that  a 
neutral  state  is  bound  to  use  due  diligence  to  prevent  the 
construction  for,  or  sale  to,  a  belligerent  purchaser,  or  the 
exportation  to  a  belligerent  destination,*^  of  any  vessel  which 
is  adapted  or  readily  convertible  to  belligerent  use?** 

It  will  be  said  that  this  is  an  invasion  of  the  commercial 
rights  of  neutral  individuals  who  depend  upon  shipbuilding 
for  a  livelihood  or  for  profit,  and  that  it  imposes  onerous  and 
difficult  burdens  upon  neutral  states.  Moreover,  "if  a  dis- 
tinction is  to  be  made  between  vessels  serviceable  for  war- 
like use  and  other  vessels,  where,  it  may  be  asked,  are  we  to 
fix  the  line  ?"*'''     It  is  very  doubtful  whether  our  shipbuilding 

"  In  case  the  destination  were  nominally  neutral,  but  really  belliger- 
ent, the  doctrine  of  "continuous  voyage"  might  be  made  to  apply. 

"^  Bonfils  (§  1467)  thinks  that  a  neutral  state  should  "forbid  to  its 
subjects  the  sale  of  all  armed  war  ships  and  oppose  their  departure  by 
all  means  in  its  power."  These  questions  are  discussed  at  length  by 
Kleen.  op.  cit.,  §  83,  pp.  323-31  (especially  p.  329)  and  §  85,  pp.  335 
339.  Kleen  lays  down  the  following  rule  (§  85,  p.  335)  :  "A  neutral 
state  should  neither  directly  nor  indirectly,  send,  remit,  or  deliver, 
to  a  belligerent,  war  ships  or  vessels  that  are  notoriously  adapted  to 
warlike  use  or  intended  for  belligerent  service,  nor  should  it  allow  its 
subjects  to  do  so." 

"  Bernard,  op  cit.,  p.  395. 


VESSELS    INTENDED    FOR    BELLIGERENT    SERVICE        IO7 

interests*"  would  greatly  suffer  by  an  adoption  of  these 
principles ;  but,  even  supposing  that  this  were  the  case,  have 
communities  or  nations  ever  hesitated  to  sacrifice  the  vested 
rights  or  commercial  interests  of  certain  individuals,  or  even 
classes,  to  the  general  welfare  of  society  as  a  whole?  If 
they  have  not  hesitated  to  exact  these  sacrifices  in  the  interest 
of  particular  communities  or  nations,  how  much  less  hesita- 
tion should  there  be  when  the  welfare  of  humanity  at  large 
or  the  collective  interest  of  civilization  are  at  stake! 

But.  it  may  be  asked,  should  we  not  go  still  farther,  and. 
as  has  frequently  been  suggested,  prohibit  all  trade  in  arms 
and  ammunition  or  implements  of  warfare  between  bellig- 
erents and  neutrals?  To  this  piece  of  apparently  unan- 
swerable logic  we  may  reply  that  to  compel  neutral  states  to 
assume  such  responsibilities  would  burden  them  to  such  an 
extent  that  in  some  cases  they  might  prefer  the  status  of 
belligerency  to  that  of  neutrality.  In  framing  rules  of  In- 
ternational Law  we  should  be  careful  never  to  exceed  the 
limits  of  the  practical,  and  we  should  avoid  the  mistake  into 
which  our  legislatures  so  often  fall  of  framing  rules  which 
are  difficult  or  impossible  to  enforce. 

**  Even  under  the  interpretation  given  to  our  present  law,  it  is  rather 
difficult  to  imagine  a  case  where  such  a  vessel  might  so  be  disposed  of 
(if  sold  to  a  belligerent  purchaser  or  dispatched  to  a  belligerent  desti- 
nation) as  to  free  the  neutral  trader  or  builder  from  all  taint  of  sus- 
picion of  being  engaged  in  an  illegal  venture  or  an  unlawful  transac- 
tion (see  c.  g.,  the  cases  of  the  Meteor  and  the  U.  S.  v.  Quincy,  cited 
above).  In  practice  it  is  very  difficult  to  distinguisli  I)elwcen  a  bel- 
ligerent and  a  commercial  intent.  There  is  no  attempt  at  such  a  dis- 
tinction in  the  case  of  contraband  of  war  where  the  character  of  the 
articles  and  the  belligerent  destination  furnish  the  justification  of  cap- 
ture. The  main  difference  between  the  two  cases  would  be  that  in  the 
case  of  contraband  the  right  of  capture  l)c!(ings  to  the  belligerent ;  in 
that  of  vessels  adapted  to  warlike  use  and  intended  for  a  belligerent 
destination,  the  duty  of  prevention  would  rest  nn  the  neutral,  as  it 
indeed  alreadv  docs  to  a  vorv  considerable  extent 


I08  THE    RUSSO-JAPANESE    WAR 

Would  it  be  impossible  or  difficult  to  enforce  the  pro- 
hibition of  the  sale  to,  or  construction  for,  a  belligerent  pur- 
chaser of  all  vessels  adapted  or  readily  convertible  to  warlike 
use,  or  to  prevent  the  exportation  of  such  vessels  to  a  bel- 
ligerent destination?  Some  at  least  of  the  nations  have 
already  burdened  themselves  with  considerable  responsibility 
in  this  direction.  According  to  our  own  neutrality  laws, 
such  a  vessel  might  indeed  be  built  and  sold  as  an  article  of 
commerce,  but  it  must  not  be  permitted  to  depart  from  any 
of  our  ports  if  intended  for  belligerent  use.  In  England, 
since  the  enactment  of  the  British  Foreign  Enlistment  Act  of 
1870,  such  a  vessel  could  not  lawfully  be  built  or  contracted 
for.  According  to  the  older  statutes,  the  Alabama  might 
have  been  built  and  sold  as  an  article  of  commerce,  if  she 
had  not  been  directly  intended  for  the  service  of  the  Con- 
federacy. But,  as  an  able  writer  has  well  said  :  "It  is  clear 
that  proof  of  an  intention  hostile  in  fact,  or  constructively 
hostile,  in  the  builder  of  a  ship  or  his  workmen,  or  in  the 
maker  or  purveyor  of  guns  or  ammunition,  has  really  little 
or  nothing  to  do  with  the  question  whether  the  belligerent 
nation  has  sustained  injury  from  the  neutral.  To  the  United 
States  it  was  of  no  consequence  at  all  what  were  the  inten- 
tions of  Laird  or  Miller,  or  their  riggers  or  ship  carpenters, 
or  whether  these  persons,  or  any  of  them,  were  animated  by 
partiality  to  the  Confederates,  or  were  merely  working,  in 
the  exercise  of  their  respective  trades,  for  what  they  could 
get.  What  was  of  consequence  to  the  United  States  was  the 
intention  with  which  the  vessels  were  dispatched  from  Eng- 
land by  those  who  had  at  that  time  the  real  control  of  them. 
.  .  .  Nor  did  it  matter  to  the  United  States  whether  the 
vessels  were  purchased  ready-made  or  were  built  to  or- 
der.   ...    In  a  word,  as  between  nations,  the  intent  which 


VESSELS    INTENDED    FOR    BELLIGERENT    SERVICE        IO9 

impresses  on  an  armed  ship,  dispatched  from  a  neutral  port, 
the  character  of  a  hostile  expedition  is  the  intent  which  gov- 
erns the  dispatch  of  the  ship,  not  the  intent  which  presided 
over  its  preparation."*^ 

As  to  the  (lifticulty  of  distinguishing  between  vessels  serv- 
iceable for  warlike  use  and  other  vessels,  it  must  be  admitted 
that  this  is  a  real  and  serious  difficulty;  but  it  is  one  which 
might,  we  think,  be  overcome  by  the  exercise  of  proper  care 
and  exertion  on  the  part  of  the  neutral  government.*" 

"Bernard,  ot>.  cii.,  pp.  19O-97.  This  argument  was  used  by  Bernard 
against  the  American  claims,  but  it  merely  proves  the  inconsistency  or 
inadequacy  of  the  American  doctrine  of  intent.  This  doctrine  is  now 
mainly  open  to  criticism  because  it  does  not  go  far  enough.  It  is  too 
narrow  and  restricted  in  its  scope.  By  condemning  the  commercial  as 
well  as  the  belligerent  intent,  much  of  the  difficulty  and  doubt  to  which 
it  has  given  rise  would  vanish.  On  the  inadequacy  of  the  doctrine  of 
belligerent  as  distinguished  from  commercial  intent,  see  also  Kleen, 
op.  cit.,  pp.  325,  331-35.  and  338. 

The  real  question  is  as  to  whether  the  vessel  is  likely  to  prove  useful 
to,  or  fall  into,  the  hands  of  one  of  the  belligerents.  This  must  be  pre- 
vented, if  possible,  i.  c.  due  diligence  must  be  used  by  the  neutral 
state  to  prevent  it.     Due  diligence,  of  course,  implies  knowledge. 

"This  is  a  question  for  experts.  Hall  (p.  620)  says:  "Experts  are 
perfectly  able  to  distinguish  vessels  built  primarily  for  warlike  use: 
there  would  therefore  be  little  practical  difficulty  in  preventing  their 
exit  from  neutral  ports,  and  there  is  no  reason  for  relieving  a  neutral 
government  from  a  duty  which  it  can  easily  perform.  But  it  is  other- 
wise with  many  vessels  primarily  fitted  for  commerce."  Hall  calls 
special  attention  to  the  fact  that  "mail  steamers  of  large  size  are  fitted 
by  their  strength  and  built  to  receive,  without  much  special  adaptation, 
one  or  two  guns  of  sufficient  calibre  to  render  the  ships  carrying  them 
dangerous  cruisers  against  merchantmen."  He  remarks  that  these 
vessels  "melt  insensibly  into  other  types."  and  he  thinks  that  "it  would 
be  impossible  to  lay  down  a  rule  under  which  they  could  be  prevented 
from  being  sold  to  a  belligerent  and  transformed  into  constituent  parts 
of  an  expedition  immediately  outside  neutral  waters  without  paralyzing 
the  whole  ship-building  and  ship-selling  trade  of  the  neutral  country." 
Part  of  this  argument  has  been  dealt  with  above.  Hall  certainly  exag- 
gerates the  injury  to  shipbuilders.  VV'c  would  not  presume  to  say  to 
what   extent  experts   can   distinguish   between   the   different   classes  of 


no  THE    RUSSO-JAPANESE    WAR 

There  can  be  no  doubt  that  the  German  Government  was 
guilty  of  a  violation  of  neutrality  in  permitting  the  sale  and 
delivery  of  the  transatlantic  steamers  of  the  great  German 
steamship  companies  to  agents  of  the  Russian  Government. 
The  sale  of  merchant  vessels  by  neutral  individuals  to  bel- 
ligerents has  generally  been  upheld  in  spite  of  the  adapta- 
bility of  many  of  these  vessels  to  warlike  purposes,*^  al- 
though the  arming  and  equipping,  as  well  as  the  augmenta- 
tion of  the  force  of  such  vessels  after  having  been  armed 
and  equipped  in  a  neutral  port,  have  generally  been  deemed 
unlawful.  The  fact,  however,  that  these  vessels  were  aux- 
iliary cruisers  of  the  German  Navy  puts  a  different  face  on 
the  matter.  In  view  of  the  close  and  intimate  relations 
which  subsist  'between  these  companies  and  the  German 
Government,  the  sale  and  exportation  of  such  vessels  would 
seem  to  be  impossible  without  the  consent  or  connivance  of 
that  Government;  and  it  can  hardly  be  contended  that  such 
consent  or  connivance  could  be  given  without  a  serious 
breach  of  neutral  obligation. 

In  any  case,  the  reported  contention  of  Chancellor  von 
Billow  to  the  effect  that  the  sale  of  the  vessels  of  a  private 
firm  to  a  foreign  state  or  to  a  private  firm  is  admissible,  can 
not  be  maintained  if  it  be  meant  that  the  neutral  government 
is  free  from  responsibility  in  all  such  cases,  as  e.  g.,  in  the 
case   of   warships.     It   has   been   suggested   that   Germany 

vessels.  In  order  to  secure  a  proper  enforcement  of  the  law,  guarantees 
or  bonds  might  be  exacted  from  ship-builders  and  ship-traders,  such 
as  are  required  by  the  terms  of  our  own  Neutrality  Act.  The  bur- 
den of  proof  should  be  thrown  upon  the  ship-builder,  as  is  done  by 
the  British  Act  of  1870.  He  is  liable  if  he  has  "reasonable  cause  to  be- 
lieve, etc." 

"  See  e.g.,  the  opinion  of  Secretarj-  Clay  to  Mr.  Rivas  Salmon  in 
1827,  Wharton's  Dig.  Ill,  p.  520.  This  is  not,  however,  in  accordance 
with  the  newer  and,  as  we  believe,  the  sounder  doctrine  advocated  above. 


VESSELS    INTENDED    FOR    BELLIGERENT    SERVICE        I  I  I 

would  not  have  been  guilty  of  any  breach  of  neutrality  if  she 
had  simply  played  the  part  of  an  "honest  broker,"^"  and  sold 
ships  of  all  kinds  impartially  to  both  belligerents;  but  this 
notion  is  based  upon  a  wnolly  erroneous  conception  of  the 
real  nature  and  scope  of  neutrality.  "Neutrality  does  not 
consist  in  the  mere  impartial  treatment  of  opposing  bellig- 
erents, but.  in  the  entire  abstinence  from  any  assistance  of 
either  party  in  his  warfare."  and  "a  neutral  government  is 
bound  not  only  to  abstain  from  affording  any  direct  addition 
to  the  combatant  force  of  either  belligerent,  but  to  exercise 
a  reasonable  diligence  in  comi^lling  the  like  conduct  on  the 
part  of  all  persons  within  its  jurisdiction."'*'  Total  absten- 
tion— not  mere  impartiality — is  in  such  matters  the  real 
extent  of  neutral  obligation. 

Modern  usage  seems  also  to  permit  the  sale  of  submarine 
boats  or  torpedo  craft  as  merchandise,  although  it  is  difficult 
to  justify  or  defend  such  usage  on  principle.  Our  own 
Government,  following  a  precedent  which  was  set  by  Secre- 
tary Evarts  in  1879.'*-  seems  to  class  these  boats  with  con- 
traband of  war,  at  least  if  shipped  in  sections,  rather  than  as 
warships,  and  consequently  declines  to  forbid  their  sale  or 
prevent  their  shipment  from  .American  ports.  Other  gov- 
ernments appear  to  take  the  same  or  a  similar  view  of  their 
obligations  in  such  cases. 

The  fact,  however,  that  these  vessels  are  not  armed  or 
furnished  with  crews;  that  they  are  shipped  in  sections  and 

••See  editorial  in  N.  Y.  Tribune  for  May  11,  IQ04.  aiiti  the  opinion 
of  Chancellor  von  Hiilow,  cited  ahove.  This  seems  also  to  have  been  the 
opinion  of  Secretary  Clay.     See  Wharton's  Dig.  Ill,  p.  520. 

"  Walker.  The  Science  of  International  Law,  pp.  374  and  388.  Atten- 
tion should  be  called  to  the  fact  that  there  arc  certain  kinds  of  indirect 
aid  to  belliRerents.  as.  e.  g..  trade  in  contraband,  which  are  not  forbidden 
to  nentral  individuals. 

"Wharton's  Dig.  III.  5  391,  p.  515. 


112  THE    RUSSO-JAPANESE    WAR 

are  not  fully  completed  on  neutral  territory,  ought  not  to 
free  neutral  gov-ernments  from  responsibility  (provided  they 
have  knowledge)  in  this  matter,  any  more  than  the  fact 
that  the  Alabama  received  her  armament  in  Portuguese 
waters  absolved  the  British  Government  during  the  Civil 
War.  Besides,  both  the  First  and  the  Second  Rules  of  the 
Treaty  of  Washington  seem  expressly  to  cover  such  cases. 
Indeed,  any  kind  of  a  modern  war  vessel  intended  for  bel- 
ligerent service  is  a  weapon  with  such  tremendous  possibili- 
ties of  destruction  that  it  approximates  a  military  expedition ; 
and  the  exportation  of  such  a  vessel,  either  as  a  whole  or  in 
sections,  for  the  use  of  a  belligerent,  from  a  neutral  port 
amounts  in  effect  to  the  use  of  neutral  territory  as  a  base  of 
military  operations,  or  to  the  origination  of  a  proximate  act 
of  war  on  neutral  soil — acts  which  are  clearly  forbidden  by 
International  Law.^^ 

In  the  case  of  the  submarine  boat  Protector,  which  was 
shipped  as  cargo  on  board  the  Norwegian  steamer  Fortuna, 
and  which  cleared  from  New  York  early  in  June,  1904,  the 
Government  of  the  United  States  could  in  no  wise  be  held 
responsible  whatever  her  destination,  although  the  owners 
or  builders  might,  possibly,  under  certain  circumstances,  have 
been  indicted  under  our  neutrality  laws.^*  As  Mr.  Cass, 
Secretary  of  State,  said  in  i860:  "A  Government  is  re- 
sponsible only  for  the  faithful  discharge  of  its  international 
duties,  but  not  for  the  consequences  of  illegal  enterprises,  of 
which  it  had  no  knowledge,  or  which  the  want  of  proof  or 

"  "No  proximate  acts  of  war  are  in  any  manner  to  originate  on  neu- 
tral ground."    Sir  W.  Scott  in  the  Tzvee  Gebroeders,  3  C.  Rob.  164. 

"  These  remarks  may  also  be  applied  to  the  case  of  the  Fulton.  See 
above,  p.  95. 


VESSELS    INTENDED    FOR    BELLIGERENT    SERVICE         II3 

Other  circumstances  rendered  it  unable  to  prevent."'"'  "The 
case  of  this  submarine  was  distinctly  one  in  which  our  Gov- 
ernment neither  actually  had  knowledge  nor  was  'charged' 
with  it.  .  .  .  To  make  sure  that  no  submarines  were 
building  in  the  United  States,  we  should  have  to  maintain  a 
constant  inspection  of  every  shipyard  and  boatyard  in  the 
country,  which  is.  of  course,  out  of  the  question.'"''" 

It  is  one  of  the  duties  of  the  diplomatic  representatives  of 
the  belligerent  states  in  neutral  countries  to  call  the  attention 
of  such  and  similar  violations  of  neutrality  on  the  part  of 
neutral  individuals  to  neutral  governments.  If  the  Russian 
or  the  Japanese  representative  at  Washington  had  called  the 
attention  of  our  Government'"^  to  the  fact  that  a  submarine, 
supposed  to  be  intended  for  use  against  his  country,  was 
building,  our  effective  responsibility  would  then  have  begun. 
This  would  have  made  the  case  parallel  to  that  of  the  Ala- 
ba)iia.  In  that  case,  the  Geneva  tribunal  found  from  all  the 
facts  that  the  "British  Government  failed  to  use  due  dili- 
gence in  the  performance  of  its  neutral  obligations,  and 
especially  that  it  omitted,  notwithstanding  the  warnings  and 
official  representations  made  by  the  diplomatic  agents  of  the 
United  States,  to  take  in  due  time  effective  measures  of  pre- 
vention." Under  such  circumstances  there  might  possibly 
have  been  material  for  another  Alabama  case,  at  least  if 
other  conditions  had  been  present,  "such  as  proof  that  it 

"Mr.  Cass.  Secretary  of  State,  to  .Mr.  .Molina,  i860.  Sec  Wharton's 
Dig.  Ill,  p.  60.V 

"See  an  excellent  editorial  on  this  subject  in  the  N.  V.  Times  for 
June  13,  1904. 

"'  The  failure  of  the  representatives  of  hotli  Russia  and  Japan  to  call 
the  attention  of  neutral  gf)vernnients  to  these  matters  is  probably  due 
to  the  fact  that  both  belligerents  hoped  to  profit  by  such  sales  or  ship- 
ments. 


114  THE    RUSSO-JAPANESE    WAR 

really  was  a  submarine,  and  proof  that  it  really  did  some 
damage  to  one  of  the  belligerents."^* 

■"From  the  editorial  cited  above.  Proof  of  actual  injury,  as  well 
as  actual  knowledge  and  lack  of  due  diligence,  would  probably  have  to 
be  furnished  by  the  injured  belligerent  in  order  to  justify  a  claim  for 
damages,  although  the  duties  of  a  neutral  government  would  begin  long 
before  that  point  had  been  reached ;  but  evidence  of  hostile  intention 
would,  under  certain  circumstances,  justify  a  prosecution  under  our 
neutrality  laws. 


I 


CHAPTER    IV 

War  Correspondents,  Wireless  Telegraphy,  and  Sub- 
marine Mines 

The  Russo-Japanese  War  has  given  rise  to  several  inter- 
esting and  im|K)rtant  questions  bearing  upon  the  rights  and 
privileges  of  neutrals  in  warfare  which  are  wholly  new  and 
unprecedented  in  the  history  of  International  Law.  In  deal- 
ing with  these  questions  it  may  be  well  to  call  attention  to 
the  fact  that  a  discussion  of  such  topics  must  necessarily  be 
more  or  less  tentative  in  its  nature,  inasmuch  as  we  can  not 
appeal,  in  support  of  our  views,  to  the  authority  of  eminent 
publicists  or  jurists  or  to  the  force  of  precedents  in  interna- 
tional practice.  In  the  absence  of  such  guides  we  must  fall 
back  upon  the  general  or  fundamental  principles  of  our 
science  or  seek  for  analogous  cases  in  the  history  of  Interna- 
tional Law. 

I 

The  first  of  these  questions  relates  to  the  rights  of  war 
correspondents  and  the  use  of  wireless  telegraphy  in  neutral 
waters  and  on  the  high  seas. 

The  head  of  our  State  I)ej)artnicnt  must  have  been  con- 
siderably surprised  to  receive  the  following  note  from  Count 
Cassini.  the  Russian  ambassador  nt  Washington,  nn  April 
15, 1904: 

"I  am  instructed  by  my  Government,  in  order  that  tiicre  may 
be  no  misunderstanding,  to  inform  your  Kxcellcncy  that  the 
Lieutenant  of  his  Imperial  Majesty  in  tin  Far  b'ast'  lias  just 
made  the  following  declaration:  In  case  neutral  vessels,  hav- 
ing on  board  corrcs]itindiiits  who  may  communicate  news  to 

'  Admiral  Alcxicff. 


Il6  THE    RUSSO-JAPANESE    WAR 

the  enemy  by  means  of  improved  apparatus  not  yet  provided 
for  by  existin^^  conventions,  should  be  arrested  off  Kwan-tung, 
or  within  the  zone  of  operations  of  the  Russian  fleet,  such  cor- 
respondents shall  be  regarded  as  spies,  and  the  vessels  provided 
with  such  apparatus  shall  be  seized  as  lawful  prizes. "- 

It  is  believed  that  a  similar,  if  not  identical,  note  was  com- 
municated to  the  other  Powers,''  wdiich  w^as  thus  in  the 
nature  of  a  general  notification  to  the  whole  world.  After 
a  careful  consideration  of  this  announcement  by  the  Russian 
Government  that  it  proposed  to  treat  as  spies  any  newspaper 
correspondents  falling  into  its  hands  who  might  be  engaged 

*  For  the  text  of  this  note,  see  the  London  Times  (weekly  ed.)  for 
April  22,  1904,  and  House  Doc.  of  58th  Congress,  2nd  session  (For. 
Rel.,  1904),  p.  729.  Cf.  N.  Y.  Times  for  April  16,  1904.  This  declara- 
tion on  the  part  of  the  Russian  Government  is  somewhat  analagous  to 
Prince  Bismarck's  threat,  during  the  Franco- Prussian  war,  to  treat 
those  crossing  the  German  lines  in  balloons  as  spies.  This  action  of 
Bismarck  has  generally  been  condemned  by  publicists.  The  Second 
Hague  Convention  (Art.  29)  expressly  declares  that  "individuals  sent 
in  balloons  to  deliver  dispatches,  and  generally  to  maintain  communica- 
tion between  the  various  parts  of  an  army  or  a  territory"  are  not 
spies.     For  Bismarck's  declaration,  see  Guelle,  Precis,  I,  p.  136. 

'  This  is  true,  at  least  in  the  case  of  the  British  Government.  The 
British  note  does  not  seem  to  have  been  given  to  the  Press,  but  on 
April  22  Earl  Percy,  Under-Secretary  of  State  for  Foreign  Affairs, 
gave  an  account  of  Admiral  Alexieff's  order  in  the  House  of  Commons 
which  differed  from  the  American  version  in  a  very  important  respect. 
He  spoke  of  "correspondents,  who  are  communicating  information  to  the 
enemy,"  instead  of  "who  may  communicate,  etc."  "There  is,"  as  Law- 
rence {War  and  Neutrality  in  the  Far  East,  2nd  ed.,  p.  85)  says  in 
commenting  upon  this  apparent  discrepancy,  "all  the  difference  in  the 
world  between  being  in  a  position  to  do  an  act  and  actually  doing  it." 
In  the  latter  case,  i.  c.,  if  the  war  correspondent  on  board  the  Haimun 
had  actually  communicated  news  to  the  Japanese,  he  would  have  been 
guilty  of  having  performed  an  unneutral  service  for  which  he  would 
have  rendered  himself  liable  for  the  loss  of  his  ship  and  apparatus,  al- 
though even  in  this  case,  he  would  not  have  been  subject  to  the  treat- 
ment of  a  spy.  We  have  accepted  the  American  version  and  assumed 
throughout  our  discussion  that  there  was  no  question  of  unneutral  serv- 
ice involved. 


WAR    CORRESPONDENTS    AND    WIRELESS    TELEGRAPHY       11  / 

in  the  collection  or  transmission  of  news  on  the  high  seas  by 
means  of  wireless  telegraphy,  our  Government  appears  to 
have  wisely  decided  to  defer  action  or  formal  protest  until  a 
case  of  violation  of  neutral  or  American  rights  had  actually 
arisen.* 

The  Russian  note  to  the  Powers  was  provoked  by  the 
presence  in  the  Yellow  Sea  and  adjacent  waters  of  a  British 
war  correspondent  equipped  with  a  De  Forest  wireless  tele- 
graph apparatus'"  on  board  the  Chinese  dispatch  boat  Hai- 
miin.  This  vessel,  which  was  in  the  joint  service  of  the 
London  Times  and  the  New  York  Times,  and  which  flew  the 
British  flag,  had  been  cruising  about  the  Gulf  of  Pe-chi-li 
and  adjacent  waters  as  near  to  Port  Arthur  as  practicable, 
and  was  sending  its  dispatches  by  means  of  wireless  teleg- 
raphy to  a  neutral  station  at  the  British  port  of  Wei-hai- 
wei,  whence  they  were  transmitted  to  London  and  thence  to 
New  York.  The  Times'  correspondent  declared  that  his 
messages,  being  in  cipher,  could  not  be  recorded  either  by 
Russian  or  Japanese  instruments,  that  they  all  went  to  a 
neutral  cable  office,  that  he  had  never  been  in  Russian  waters, 
and  that  all  of  his  dispatches  had  been  ^cnt  either  in  neutral 
waters  or  on  the  high  seas." 

*  The  Russian  Foreign  Office  was  notified,  however,  thai  "the  United 
States  Government  does  not  waive  any  right  it  ma\'  have  in  Interna- 
tional Law  should  any  American  citizen  !)C  arrested  or  any  American 
vessel  he  seized."  Lord  Lansdownc  addressed  a  note  to  the  Russian 
amhassador  in  London  embodying  a  reservation  similar  to  that  con- 
tained in  the  reply  of  the  I'nitcd  States.  {House  /><»»•.  nf  58th  Con- 
gress, 3rd  session,  Foreign  Rel.  1904,  pp.  332-33,  and  p.  729.)  Russia 
appears  to  have  given  assurances  tu  the  British  and  American  Govern- 
ments that  she  did  not  contemplate  any  immediate  execution  of  her 
threat.  Lord  Lansdownc  is  reported  to  have  expressed  the  opinion  that 
the  attitude  of  Russia  was  "unjustifiable  and  altogether  absurd."  See 
N.  Y.  Tinit's  for  .\pril  22,  1904. 

*  Several  of  the  operators  are  said  to  have  been  .\niericans. 

'  See  his  letter  in  the  N.  Y.  Times  for  .\pril   19.   1904.     It  is  worth 


Il8  THE    RUSSO-JAPANESE    WAR 

War  is  now  regarded  as  an  abnormal  or  exceptional  rela- 
tion between  states,  and  the  presumption,  even  in  time  of 
warfare,  is  always  in  favor  of  the  laws  of  peace  and  there- 
fore of  the  rights  and  privileges  of  neutrals  in  their  peaceful 
relations  with  each  other  and  with  belligerents.  "Unless 
proof  to  the  contrary  is  shown,  neutral  states  and  their  sub- 
jects are  free  to  do  in  time  of  war  between  other  states  what 
they  were  free  to  do  in  time  of  universal  peace."^ 

If  we  apply  this  fundamental  principle  of  the  Law  of 
Neutrality  to  the  subject  under  discussion,  it  will  at  once  be 
seen  that  not  a  word  can  be  said  in  favor  of  this  absurd  and 
monstrous  innovation  upon  the  rights  of  neutrals  threatened 
by  Russia.     The  Russians  appear  to  have  defended  Admiral 

noting  that  the  Japanese  also  attempted  to  control  the  movements  of 
the  Haimun.  In  a  communication  printed  in  the  N.  Y.  Times  for  May 
i6,  the  Times'  correspondent  stated  that  on  April  17  he  had  received  a 
communication  from  the  British  Minister  at  Tokio  to  the  effect  that 
he  was  requested  by  the  Japanese  military  authorities  not  to  proceed 
north  of  the  Che-Foo  -  Che-mul-po  line  until  further  notice.  He  re- 
marked that  his  position  was  difficult  in  the  extreme.  He  was  threat- 
ened with  capital  punishment  by  one  belligerent  and  warned  off  the 
high  seas  and  neutral  waters  by  the  other.  He  chose,  however,  to  sub- 
mit to  the  wishes  of  Japan  out  of  deference  to  former  courtesies  on  the 
part  of  the  Japanese.  These  restrictions  on  the  movements  of  the 
Haimun  appear  subsequently  to  have  been  at  least  partially  removed  by 
Japan. 

'  Lawrence,  Principles,  p.  474.  It  is  unnecessary  to  multiply  refer- 
ences upon  this  general  and  fundamental  principle  of  the  Law  of  Neu- 
trality, which  may  be  regarded  as  fully  established  since  the  close  of 
the  eighteenth  century.  "Till  then  belligerents  were,  on  the  whole, 
more  powerful  than  neutrals,  and  were  able  to  carry  on  their  wars 
with  slight  regard  to  the  sanctity  of  neutral  territory  or  the  convenience 
of  neutral  commerce."  Lawrence,  op.  cit.,  p.  475.  For  the  earlier  prac- 
tice and  theory,  see  especially  Hall,  Pt.  H,  ch.  2.  For  a  remarkable 
exposition  of  this  fundamental  principle,  see  Decamp,  Le  Droit  de  la 
Paix  et  de  la  Guerre"  (1898),  and  an  article  by  the  same  author  in  the 
Revue  Generate  de  Droit  International  Public,  VH  (1900),  pp.  629  ff. 
M.  DeCamp's  conclusions  were  unanimously  accepted  by  the  Interpar- 
liamentary Peace  Conference  at  its  Paris  session  in  1900. 


WAR    CORRESPONDENTS    AND    WIRELESS    TELEGRAPHY       I  I9 

Alexieff's  order  on  the  grounds  that  "the  corresponrlent  on 
board  the  Haimnn  regularly  transmitted  to  Che-Foo  intelli- 
gence of  all  the  outgoings  and  ingoings  of  the  Russian  fleet 
at  Port  Arthur,"  and  that  "the  information  thus  conveyed 
might  obviously  have  been  of  the  highest  value  to  the  Jap- 
anese."* 

It  also  appears  from  Count  Cassini's  note  that  the  fact 
that  the  use  of  wireless  telegraphy  had  not  been  "foreseen 
by  existing  conventions"  seemed  to  the  Russian  Government 
to  afford  ample  justification  for  such  an  unwarranted  attack 
upon  the  rights  of  neutral  individuals.  In  other  words,  the 
presumption  was  assumed  to  be  in  favor  of  the  rights  of 
belligerents  and  against  the  rights  of  neutrals — a  total  mis- 
conception and  reversal  of  one  of  the  fundamental  principles 
of  modern  International  Law.  Under  existing  law  it  would, 
as  a  matter  of  fact,  require  an  International  Convention  to 
prohibit,  or  even  to  restrict,  the  use  of  wireless  telegraphy  on 
the  high  seas  or  in  neutral  territory. 

In  view  of  their  ever-growing  importance,  it  is  somewhat 
surprising  to  note  that  the  status  of  war  correspondents  is 
one  which  is  seldom  discussed  by  publicists  on  International 
Law."     The  "Instructions  for  the  Government  of  the  Ar- 

*  From  the  Novoe  I'rcmya,  quoted  in  the  N.  Y.  Times  for  June  8, 
1904. 

*  Among  the  publicists  who  refer  to  the  status  of  war  correspondents 
are  Bluntschli  (§§  594-96  and  638  and  notes).  Hall  (note  on  p.  404  of 
3d  ed.),  and  Lawrence,  Principles  (p.  336).  Bluntschli  says  that  a  mili- 
tary occupant  (or  invader)  has  the  "right  to  detain  persons,  who, 
without  belonging  to  the  army  and  exercising  pacific  functions,  are 
dangerous  to  the  army  of  occupation,"  amongst  whom  he  includes 
journalists  whose  opinions  arc  hostile.  He  is  also  of  the  opinion  that 
non-combatants,  e.g.,  newspaper  correspondents,  contractors,  etc.,  at- 
tached to  an  army  which  has  surrendered  or  to  troops  which  have 
been  captured,  may  be  made  prisoners  at  least  provisionally;  but  he 
thinks  they  ought  not  to  be  retained  as  prisoners  of  war  unless  "their 


I20  THE    RUSSO-JAPANESE    WAR 

mies  of  the  United  States  in  the  Field,"  prepared  by  Dr. 
Francis  Lieber  and  issued  by  the  Secretary  of  War  in  April, 
1863,  declare  that  "citizens  who  accompany  an  army  for 
whatever  purpose,  such  as  sutlers,  editors,  or  reporters  of 
journals,  or  contractors,  if  captured,  may  be  made  prisoners 
of  war,  and  be  detained  as  such."^*'  This  provision  was  in- 
corporated into  the  "Rules  of  Military  Warfare"  adopted  by 
the  Brussels  Conference  of  1874.^^  The  Code  adopted  by 
the  Institute  of  International  Law  at  its  Oxford  Session  in 
1880  merely  declares  in  favor  of  detention  in  case  of  neces- 
sity. It  provides  that  "persons  who  follow  an  army  with- 
out forming  part  of  it.  such  as  correspondents  of  news- 
papers, sutlers,  contractors,  etc.,  on  falling  into  the  power  of 
the  enemy,  can  only  be  detained  for  so  long  a  time  as  may  be 
required  by  strict  military  necessity."^"     The  "Regulations 

presence  in  the  camp  of  the  enemy  constitutes  a  support  to  the  latter 
or  a  danger  to  the  Power  which  has  captured  them."  Hall  seems  to 
think  that  newspaper  correspondents  should  only  be  detained  for 
special  reasons.  Lawrence  suggests  that  "probably  the  worst  that  could 
happen  to  them  if  captured  in  civilized  warfare  would  be  expulsion 
from  the  lines  of  the  captors." 

For  fuller  discussion  and  indication  of  recent  practice  in  respect  to 
the  treatment  of  Journalists,  see  Guelle,  Precis,  II,  55  ff.,  and  Pillet, 
Les  Lois  de  la  Guerre,  pp.  194-196.  For  the  status  and  treatment  of 
newspaper  correspondents  in  recent  wars,  see  Revue  Generate  de  Droit 
International  Public,  t.  I  (1894),  p.  60,  t.  Ill  (1896),  p.  80,  and  t.  IV 
(1897),  p.  698. 

^°  Section  III,  §  50  of  the  "Instructions."  For  the  text  of  these  In- 
structions, see,  e.  g.,  the  Appendices  to  Tucker  and  Wilson's  Interna- 
tional Law  and  Snow's  Cases. 

"  "Persons  in  the  vicinity  of  armies,  but  who  do  not  directly  form 
part  of  them,  such  as  correspondents,  newspaper  reporters,  vivandiers, 
contractors,  etc.,  may  also  be  made  prisoners  of  war.  These  persons 
should,  however,  be  furnished  with  a  permit,  issued  by  a  competent 
authority,  as  well  as  with  a  certificate  of  identity."  Art.  34  of  the  Rules 
of  the  Brussels  Conference.  For  the  English  text,  see  App.  Ill  to 
Tucker  and  Wilson. 

"  Pt.  II,  §  22,  of  Hall's  translation  of  the  Oxford  Code.    For  text,  see 


WAR    CORRESPONDENTS    AND    WIRELESS    TELEGRAPHY       121 

Respecting  the  Laws  and  Customs  of  War  on  Land." 
a<l()pted  l)y  the  Hague  Conference  in  1899.  declare  that 
'Mnthviduals  who  follow  an  army  without  directly  belonging 
to  it — such  as  newspai)er  correspondents  and  reporters,  sut- 
lers and  contractors — who  fall  into  the  enemy's  hands,  and 
whom  the  latter  see  fit  to  detain,  have  a  right  to  be  treated 
as  prisoners  of  war,  provided  they  can  produce  a  certificate 
from  the  military  authorities  of  the  army  which  they  were 
accompanying. "  * ' 

It  will  thus  be  seen  that,  according  to  existing  interna- 
tional practice,  a  war  correspondent,  who  is  capturcfl  on 
belligerent  territory  and  who  conducts  himself  properly  and 
can  show  proper  credentials,  is  entitled  to  the  privileges  of 
a  prisoner  of  war.  In  no  case  can  he  be  treated  as  a  spy. 
"An  individual  can  only  be  considered  a  spy  if.  acting  clan- 
destinely, or  under  false  pretenses,  he  obtains,  or  seeks  to 
obtain,  information  in  the  zone  of  operations  of  a  belligerent, 
with  the  intention  of  communicatins^  it  to  the  hostile 
party.'" 

It  may  be  said,  however,  that  the  use  of  wireless  teleg- 
raphy introduces  a  new  factor  into  this  jjroblem.  War 
correspondents  have  hitherto  been  more  or  less  subject  to 
control,  and  it  is  clearly  within  the  right  of  a  belligerent 
either  to  exclude  ihcm  altogether  from  belligerent  tcrritorv 

App.  II  in  Wilson  and  Tiickcr.  Cf.  §  21  of  the  translation  in  .App.  to 
Snow's  Cases.  Vnr  the  I-'rcnch  text  of  the  O.xford  Code,  see  Tableau 
Gcncralc  dc  I'histitut  dc  Droit  Int.,  pp.  173-190. 
"Art.  13.  See  HoUs,  Feacc  Conference,  pp.  148  and  431. 
"Art.  29  of  the  "RcRulations  KospectiuK  the  l-aws  and  Customs  of 
War  on  Land,'"  adopted  by  tlic  Hagne  Conference.  See  Holls,  op.  cit., 
pp.  153  and  439.  Cf.  the  definitions  of  a  spy  contained  in  the  American 
Instructions  (5  88)  and  the  Rules  of  the  Brussells  Conference   (§  19). 

Ihey  are  couched   in  terms  almost   identical  with  those  employed  by 

I  lie  HaRiic  Conference. 


122  THE    RUSSO-JAPANESE    WAR 

or  to  place  them  under  such  supervision  as  may  be  necessary 
in  order  to  control  their  actions.  But  the  invention  of  wire- 
less telegraphy  has  made  it  possible  for  them,  under  ctrtain 
circumstances,  to  operate  either  on  the  high  seas  or  on 
neutral  territory^  °  to  an  extent  which  was  impossible  before. 
If  the  use  of  wireless  telegraphy  on  the  high  seas  may  be 
injurious  to  belligerent  interests,  might  we  not  also  conceive 
cases  in  which  it  would  be  equally  injurious  if  operated  on 
neutral  soil  ?  Would  any  one  go  so  far  as  to  maintain  that 
a  war  correspondent,  who  had  operated  either  by  means  of 
wireless  telegraphy  or  by  any  other  system  on  neutral  terri- 
tory, could  be  seized  and  treated  as  a  spy  under  any  circum- 
stances, or  even  be  held  as  a  prisoner  of  war  ?  A  belligerent 
undoubtedly  has  the  right  to  prohibit  or  prevent  the  trans- 
mission of  cable  messages  (and  wireless  telegraphy  is  only  a 
means  of  accelerating  the  transmission  of  messages)  on  bel- 
ligerent territory  (including  the  three-mile  limit).  So  he 
also  probably  has  the  right  to  interrupt  submarine  tele- 
graphic cables  extending  between  enemy  and  neutral  terri- 
tory at  any  point  within  his  own  territorial  jurisdiction  or 
within  that  of  the  enemy.  But  he  has  no  right  to  interfere 
with  submarine  telegraphic  communication  between  two 
neutral  territories.  "On  the  high  sea  a  cable  can  only  be  cut 
in  case  there  is  an  effective  blockade,  and  within  the  limits 
of  the  line  of  blockade."^" 

^^  In  the  summer  of  1904  the  Russians  installed  a  wireless  telegraphy 
apparatus  at  the  Chinese  port  of  Che-Foo  for  the  transmission  of  wire- 
less messages  from  Port  Arthur.  See  e.  g.,  New  York  Times  for  June 
9  and  II,  1904.  This  was  a  case  of  the  use  of  neutral  territory  by  a 
belligerent  for  a  military  purpose,  but  newspaper  correspondents  might 
conceivably  make  similar  use  of  a  neutral  station.  The  Chinese  authori- 
ties finally  realized  their  neutral  obligations  and  demolished  the  wire- 
less station  at  Che-Foo  toward  the  end  of  August,  1904.  See  Lawrence, 
War  and  Neutrality  (2d  ed.),  pp.  218-220. 

"Rule  adopted  by  the  Institute  of  International  Law.    See  Annuaire, 


WAR    CORRESPONDENTS    AND    WIRELESS    TELEGRAPHY       I J3 

But  in  view  of  the  possible  injury  which  may  result  to 
belligerents  from  the  use  of  wireless  telegraphy  on  the  high 
seas  or  on  neutral  territory,  some  concessions  should  perhaps 
be  made  to  military  necessity,  provided  neutral  rights  and 
interests  are  not  seriously  impaired.  Interference  with  wire- 
less messages  by  neutrals  on  the  high  seas  might,  under 
certain  circumstances,  be  permitted  to  belligerents,  as  also 
the  seizure  and  confiscation  of  wireless  telegraphy  apparatus 
as  contraband  of  war.'"  and  neutrals  should  certainly  refuse 

XIX,  p.  331.  See  also  Art.  5  of  ihe  Naval  War  Code,  prepared  by 
Captain  Stockton,  of  the  United  States  Navy,  and  issued  as  General 
Orders  No.  551  on  June  27,  1900.  On  the  law  of  submarine  cables,  see 
especially,  Scholz,  Krieg  und  Seekabel;  Renault  in  the  Revue  Generate 
dc  Droit  hilcniational  Public,  t.  XII.  pp.  251  fT ;  and  Wilson.  Sub- 
marine Telegraph  Cables,  1901. 

"It  may  be  noted  that  M.  Pillet,  Professor  of  International  Law  at 
the  University  of  Paris,  is  quoted  as  having  expressed  a  similar  opinion 
in  respect  to  the  liability  to  seizure  and  confiscation  of  wireless  teleg- 
raphy apparatus  as  contraband  of  war.  See  Army  and  Naz'y  Journal 
for  June  4,  1904.  The  same  opinion  is  expressed  in  the  Saturday  Re- 
vieiv  for  April  23,  1904.  It  is  worthy  of  especial  notice,  in  this  connec- 
tion, that  Russia  has  placed  telephonic  and  telegraphic  material  in  her 
list  of  contraband  of  war. 

Lawrence  (War  and  Neutrality  in  the  I'ar  East.  2d  ed.,  p.  92) 
suggests  that  "power  should  be  given  by  international  convention  to 
exclude  the  vessels  of  correspondents  for  a  time  from  any  zone  of  sea 
in  which  important  warlike  operations  were  in  process  of  development. 
Kach  belligerent  should  have  a  right  to  place  an  ofTicir  on  board  a  news- 
paper steamer  to  act  as  censor  of  its  messages,  and  the  penalty  for  per- 
sistent obstruction  and  refusal  to  obey  signals  should  be  capture  and 
confiscation."  We  do  not  see  the  necessity  for  such  an  extension  of  the 
rights  of  belligerents  and  encroachment  upon  the  rights  and  privileges 
of  neutrals.  The  phrase,  "zone  of  warlike  operations"  is  very  vague, 
and  the  penalty  appears  to  us  to  be  unduly  severe.  Why  punish  an  act 
which  is  harmless  and  innocent  in  itself  by  a  penalty  which  is  usually 
reserved  for  tliose  in  unneutral  service? 

A  recent  French  writer  (Rolland,  in  Re7'ue  Gi'nerale  de  Droit  Int. 
Pub.  for  1906.  pp.  83  flf.)  proposes  that  each  belligerent  be  given  the 
right  to  prohibit  the  emission  of  waves  by  a  neutral  on  the  high  seas 
in  a  "zone  corresponding  to  the  sphere  of  action  of  its  military  opera- 


124  THE    RUSSO-JAPANESE    WAR 

to  permit  the  use  of  their  territory  for  mihtary  purposes.^* 

II 

The  second  question,  wholly  new,  relates  to  the  menace  to 
neutral  rights  and  the  danger  to  the  safety  of  neutral  per- 
sons and  property  which,  it  was  at  one  time  feared,  existed 
from  the  placing  of  submarine  mines  in  Eastern  waters. 

In  the  latter  part  of  May,  1904,  it  was  reported  that  the 

tions."'  As  penalty  he  proposes  the  confiscation  of  the  apparatus  if 
the  dispatches  are  innocent,  and  of  the  vessel  in  case  of  unneutral 
service.  Cf.  Scholz,  Drahtlose  Telegraphic  und  Neutralitdt,  pp.  45-46. 

"Lawrence  {op.  cit.,  p.  200)  properly  suggests  that  neutral  Powers 
ought  to  prevent  the  receipt  of  messages  on  their  territory  from  a  block- 
aded garrison,  as  in  the  case  of  the  alleged  Russian  communication  be- 
tween Che-Foo  and  Port  Arthur.  He  cites  as  a  precedent  the  refusal 
by  the  British  authorities  of  a  request  from  the  United  States  for  per- 
mission to  land  a  cable  at  Hong  Kong  from  Manila  during  the  Spanish- 
American  War  in  1898,  on  the  ground  that  "to  grant  such  facility 
would  be  a  breach  of  neutrality."  But  it  may  be  well  to  call  attention 
to  the  fact  that  this  refusal  to  permit  the  use  of  neutral  territory  for 
military  purposes  rests  upon  a  well-established  principle  of  International 
Law,  and  would  not  apply  to  the  use  of  neutral  cable  stations  by  war 
correspondents.  Such  use  was  made  of  neutral  stations  in  Haiti 
(French)  and  Jamaica  by  American  war  correspondents  during  the 
Spanish-American  War.  Upon  complaint  of  the  Spanish,  the  English 
authorities  in  Jamaica  refused  to  permit  the  use  of  their  cable  stations 
for  the  transmission  of  dispatches  in  cipher  or  of  those  relating  to  the 
war.  See  Le  Fur,  Etude  sur  la  Guerre  Hispano-Americaine  de  J8g8, 
p.  227. 

For  useful  or  suggestive  discussions  or  editorials  on  "War  Corre- 
spondents and  Wireless  Telegraphy,"  see  especially  Harper's  Weekly 
for  April  30,  1904;  Army  and  Navy  Journal  for  May  21;  New  York 
Times  for  April  16-19;  London  Times  (weekly  ed.)  for  April  22; 
A.  Maurice  Low  in  The  Forum  for  July-September,  and  Sir  John  Mac- 
donnell  in  Nineteenth  Century  for  July,  1904.  See  also  Lawrence,  War 
and  Neutrality  in  the  Far  East,  pp.  83-93  and  pp.  199-202;  Thonier, 
Contrebande  de  Guerre  (1904),  ch.  6,  pp.  332  fif;  Woolsey  in  Yale  Law 
Journal  for  March,  1905 ;  Rolland  in  Revue  de  Droit  Jnt.  P.  for  1906, 
pp.  58-92;  Von  Kebedgy  in  Revue  de  Droit  Int.  ct  de  Leg.  Comp.,  pp. 
83  ff. ;  and  especially  Schok,  Drahtlose  Telegraphie  und  Neutralitdt 
(1905). 


SUBMARINE    MINES  1 25 

Russians  at  Port  Arthur  had  sown  the  whole  strait  of  Pe- 
chi-h'  with  floatinj:,'-  marine  mines.  "Not  only  have  tiiese 
diabolical  machines  been  placed  off  their  own  shores  and  in 
their  own  waters,  but  it  is  reported  that  launches  and  junks 
have  been  sent  out  to  drop  mines  at  night  or  in  fogs  in 
waters  likely  to  be  used  by  the  Japanese  warships  and  trans- 
ports. These  mines  have  drifted  into  the  high  seas  and 
Chinese  waters,  where  they  constitute  the  gravest  danger  to 
neutral  shipping."'"  It  was  feared  by  experts'*"  that  these 
mines  would  be  a  menace  to  the  lives  and  property  of  neutrals 
for  some  time  to  come,  and  that  they  might  get  out  into  the 
great  ocean  currents  and  drift  about  in  the  Pacific  Ocean. 

These  charges  against  the  Russians  can  not  be  said  to  have 
been  fully  proven,  but  there  was  certainly  a  strong  presump- 
tion of  carelessness  in  the  laying  of  these  submarine  mines 
or  negligence  in  controlling  them  after  they  were  laid.  It  is 
true  that  our  information  is  unofficial,  but  there  seems  to 
have  been  sufficient  evidence  of  the  existence  of  such  mines 
in  the  open  sea."'      Either  these  mines  were  deliberately  laid 

"  Special  cablegram  to  the  London  Times  and  New  York  Times,  pub- 
lished May  23,  1904. 

"See,  e.  g.,  The  Scientific  American  for  June  4.  1904.  and  tiie  Army 
and  Nazy  Journal  of  the  same  date. 

"The  Haimun  claimed  to  have  passed  two  of  these  mines  within  two 
miles  of  Wei-hai-wei,  i.  e.,  nearly  one  hundred  miles  from  Port  Arthur, 
on  May  22.  Twenty-one  similar  mines  are  said  to  have  been  discovered 
by  vessels  in  various  parts  of  the  Gulf  of  Pe-chi-li  and  the  Yellow  Sea. 
The  correspondent  of  the  London  P,xprcss  at  Wei-hai-wei  estimated  in 
the  latter  part  of  May  that  there  were  some  four  hundred  mines  floating 
in  or  near  the  Gulf  of  Pe-chi-li.  The  Japanese,  judging  from  newspaper 
reports,  seem  to  have  been  kept  busy  for  .some  weeks  in  removing  Rus- 
sian mines  from  these  waters,  but  the  correspondent  of  the  Chicago 
Daily  Nezvs  reported  the  discovery  of  a  freshly-painted  contact  mine 
in  the  Gulf  of  Liao-tung  as  late  as  June  20,  1904.  Insurance  rates  in 
London  are  said  to  have  risen  in  consequence  of  the  increa.sed  risks  re- 
sulting from  the  fear  of  these  mines. 


126  THE    RUSSO-JAPANESE    WAR 

or  set  adrift  on  the  high  seas,  or  they  were  insecurely  fast- 
ened in  territorial  waters  and  drifted  from  their  anchorage 
out  into  the  open  sea."" 

The  Japanese  battleship  Haisuse  was  generally  supposed  to  have  been 
blown  up  by  such  a  mine  on  May  15,  at  a  distance  of  ten  miles  from 
Port  Arthur,  although  it  was  also  suggested  that  this  vessel  may  possi- 
bly have  been  destroyed  by  a  Japanese  mine  or  by  a  mine  accidentally 
adrift.  It  was  pointed  out  that  such  a  disaster  might  likewise  have  hap- 
pened to  a  neutral  trading  vessel  cruising  in  those  waters.  The  Rus- 
sian battleship  Petropavlovsk  was  destroyed  by  a  Japanese  mine  on 
April  13,  but  this  occurred  on  the  outer  roadstead  of  Port  Arthur,  i.  e., 
in  territorial  waters.  On  the  case  of  the  Hatsuse,  see  especially  Law- 
rence, War  and  Neutrality,  pp.  93-95,  97,  and  106. 

"  It  may  be  that  the  Japanese,  too,  were  not  wholly  free  from  guilt 
in  this  matter  of  laying  mines  on  the  high  seas  or  of  negligence  in  se- 
curely fastening  them  in  territorial  waters ;  for  it  is  known  that  they 
laid  mines  for  the  Russian  fleet  at  several  points  outside  Port  Arthur 
(whether  inside  or  outside  the  three-mile  limit  is  not  clearly  stated), 
some  of  which  are  said  to  have  been  improperly  anchored  and  were 
found  adrift  in  April  and  May.  See  New  York  Times  for  April  17  and 
May  20.  But  it  would  be  absurd  to  suppose  that  the  Japanese  filled  the 
Gulf  of  Pe-chi-li  and  adjacent  waters  with  mines  to  their  own  great 
danger  and  inconvenience.  Indeed,  they  seem  to  have  been  put  to  no 
small  expense  and  efifort  in  freeing  these  waters  from  these  obstacles  to 
the  freedom  of  their  movements. 

It  appears  that  our  State  and  Navy  Departments  instituted  an  investi- 
gation at  the  time  in  order  to  ascertain  whether  and  to  what  extent 
these  mines  constituted  a  menace  to  neutral  navigation.  Our  ministers 
at  St.  Petersburg  and  Tokio,  and  our  naval  attaches  there,  were  in- 
structed to  look  into  the  matter  and  find  out  what  truth  there  might  be 
in  these  reports.  This  information  was  to  be  given  to  the  General  Naval 
Board,  which  was  then  to  submit  its  views  to  the  President  who,  if  he 
deemed  it  advisable,  would  make  proper  representations  to  the  belliger- 
ents. See  New  York  Sun  for  May  25,  1904.  The  results  of  these  in- 
vestigations, if  they  were  ever  made,  do  not  appear  to  have  been  pub- 
lished. 

In  May,  1905,  Minister  Conger  is  said  to  have  reported  to  our  State 
Department  that  there  were  a  number  of  floating  mines  in  the  Yellow 
Sea,  which  constituted  a  menace  to  neutral  shipping,  and  to  have  recom- 
mended that  the  United  States  join  with  Great  Britain  and  Germany 
in  the  work  of  destroying  them.  It  was  reported  that  several  of  these 
mines  had  been  destroyed  by  British  warships ;  but  after  careful  consid- 
eration of  the  matter  the  United  States  Government  is  said  to  have  de- 


SUBMARINE    MINES  12/ 

There  appears  to  have  been  no  official  or  semi-official  de- 
nial of  these  charges  on  the  part  of  the  Russian  Government, 
although  they  can  not  be  said  to  be  fully  established.  The 
Russians  seem  to  have  justified  such  action  on  the  ground 
that  "everything  is  permissible  in  war  except  those  things 
which  are  specifically  forbidden  by  convention  or  Interna- 
tional Law."^"'  It  was  also  suggested  in  Russia  that,  be- 
cause of  the  immensely  increased  range  of  modern  guns,  it  is 
necessary  to  enlarge  the  three-mile  limit  for  purposes  of  de- 
fense. It  was  argued  that  "if  ships  can  now  lie  eight  or  ten 
miles  away  and  yet  reach  the  coast  with  their  projectiles,  the 
defenders  have  a  perfect  right  to  take  such  military  measures 
as  they  choose  within  the  range  of  the  enemy's  guns."** 

In  reply  to  the  Russian  argument  that  everything  is  per- 
missible in  war  except  those  things  specifically  forbidden  by 
International  Law  or  Convention,  it  is  sufficient  to  repeat 

cided  not  to  participate  in  this  work.  See  Chicago  Tribune  for  May  21, 
1905. 

See  N.  Y.  Times  for  March  26,  1905,  for  a  chart  reproduced  from  the 
London  Times  showing  the  distribution  of  Russian  mines  in  the  vicin- 
ity of  Port  Arthur.  The  Japanese  are  said  to  have  raised  395  of  these 
engines  of  destruction  since  the  capitulation  of  Port  Arthur.  The  Rus- 
sians are  said  to  have  mined  the  whole  channel  between  the  Miao 
Islands  and  Liao-tie-Shan — a  channel  forty-five  miles  wide.  See  Lon- 
don Times  (weekly  ed.)  for  March  17,  1905. 

**  This  is  according  to  the  St.  Petersburg  correspondent  of  the  Lon- 
don Express.  Sec  Chicago  Tribune  for  May  25,  1904.  It  appears,  how- 
ever, that  M.  dc  Plchvc,  the  late  Russian  Minister  of  the  Interior,  in 
an  official  communication  issued  privately,  protested  vigorously  against 
the  alleged  action  of  the  Japanese  in  laying  floating  mines  in  the  road- 
stead of  Port  Arthur,  on  the  ground  that  "the  wholesale  scattering  of 
these  engines  of  destruction  at  points  where  they  may  easily  drift  iiito 
the  path  of  the  marine  cmimcrce  of  the  world,  to  the  common  danijcr, 
can  in  no  wise  be  regarded  as  admissible."  St.  Petersburg  dispatch  to 
the  St.  James  Gazette,  published  in  the  New  York  Times  f«ir  May  26, 
1904. 

**  St.  Petersburg  dispatch  in  Indianapolis  Journal  for  May  27.  1904. 


128  THE    RUSSO-JAPANESE    WAR 

that,  as  in  the  case  of  the  proposal  to  prohibit  or  punish  the 
use  of  wireless  telegraphy  on  the  high  seas  or  of  any  other 
new  and  unauthorized  interference  with  the  rights  of  neu- 
trals, the  presumption  should  always  be  in  favor  of  neutral 
rights  and  privileges  or  of  the  laws  of  peace.  In  order  to 
render  such  acts  unlawful,  it  is  not  necessary  that  they  be 
specifically  forbidden ;  for  their  prima  facie  illegality  may  be 
deduced  from  general  and  fundamental  principles.  The  sea 
is  the  common  property  and  highway  of  all  nations.  It  is 
open  to  belligerents  and  neutrals  alike ;  but,  in  cases  in  which 
there  is  a  conflict  of  rights  or  interests  between  the  two,  the 
presumption  ouglit  always  to  be  in  favor  of  neutrals.  All 
authorities    on    International    Law"''    who    have    expressed 

"^  The  following  is  a  list,  as  complete  as  we  have  been  able  to  make 
it,  of  those  who  are  reported  to  have  expressed  opinions  on  this  inter- 
esting subject:  Admiral  Horsey,  Sir  William  Walrond,  M.  P.,  Pro- 
fessor Moore  of  Columbia,  Professor  Woolsey  of  Yale,  Professor  T.  E. 
Holland  of  Oxford,  Dr.  Arnold  Jarvis,  Sir  John  Macdonnell,  Sir  Fred- 
erick Pollock,  Bart.,  Rev.  T.  J.  Lawrence,  and  M.  Pillet  of  the  Univer- 
sity of  Paris.  See  London  and  New  York  Times  for  May  24-28,  1904. 
For  the  opinion  of  M.  Pillet,  see  the  Army  and  Navy  Journal  for 
June  4. 

For  useful  editorials  or  newspaper  discussions,  see  London  and  New- 
York  Times  for  May  24-31,  1904;  New  York  Evening  Post  for  May  24, 
or  the  New  York  Nation  for  May  26;  New  York  Sun  for  May  26; 
Indianapolis  Journal  for  May  27;  London  Spectator  and  Saturday  News 
for  May  28;  Army  and  Navy  Journal  for  May  28,  and  June  4;  Scientific 
American  for  June  4;  Bradstreet's  for  May  28;  Public  Opinion  for  June 
2 ;  Berliner  Nachricht  for  May  29 ;  and  Die  Woche  for  June  4. 

"If  these  mines  were  deliberately  floated  into  waters  where  they 
would  be  liable  to  endanger  neutral  ships,  the  act  was  undoubtedly  in- 
admissible." (Professor  Moore  in  New  York  Times  for  May  25.) 
"Mines,  whether  anchored  or  intentionally  set  adrift  in  the  Strait  or 
Gulf  of  Pe-chi-li,  beyond  the  coast  sea  limit,  constitute  an  undiscrimi- 
nating  attack  upon  neutral  and  belligerent  alike,  and  are,  therefore,  ille- 
gitimate." (Professor  Woolsey  in  the  New  York  Times  of  the  same 
date.) 

"The  laying  of  mines  in  the  open  sea  beyond  the  territorial  waters 
would  seem,  not  only  inhuman,  but  a  breach  of  International  Law  and 


SUBMARINE    MINES  I  29 

themselves  on  this  subject  are,  so  far  as  we  are  aware,  unani- 
mously of  the  opinion  that  if  either  or  both  of  the  belliger- 
ents in  this  war  were  guilty  of  deliberately  sowing  any 
portion  of  the  high  seas  with  floating  mines,  they  committed 
— to  put  it  mildly — a  gross  violation  of  the  laws  of  civilized 
warfare  and  of  International  Law.  The  majority  of  these 
authorities  seem  to  be  of  the  opinion  that  this  was  the  case, 

practice.  .  .  .  If  it  should  prove  true  that  the  destruction  of  the 
Hatsusc  was  effected  by  a  mine  wilfully  placed  in  the  open  sea,  ten 
miles  from  land,  the  act  appears  to  me  one  of  wholesale  murder,  and 
its  perpetrator  hostis  humani  generis."  (  Admiral  Horsey  in  London 
Times  and  New  York  Times  for  May  24,  1904,) 

"It  is  certain  that  no  international  usage  sanctions  the  employment 
by  one  belligerent  against  another  of  mines  or  other  secret  contrivances 
which  would,  without  notice,  render  dangerous  the  navigation  of  the 
high  seas."  (Professor  Holland  in  London  Times  and  New  York  Times 
for  May  25,  1904.) 

"Every  belligerent  is  free,  I  take  it,  to  destroy  his  opponent's  vessels 
in  territorial  waters  or  on  the  high  seas  by  all  customary  means,  includ- 
ing the  use  of  mines.  If,  in  an  attempt  to  sink  an  enemy's  ship,  he  acci- 
dentally destroys  neutral  property,  there  would  be  an  unanswerable 
claim  for  damages  done  on  the  high  seas.  .  .  .  If,  cm  the  other 
hand,  and  I  hesitate  to  believe  it,  mines  are  scattered  broadcast  in  wa- 
terways outside  territorial  limits,  neutrals  who  suffered  would  have  just 
cause  to  complain.  Such  conduct,  if  persisted  in,  would  afford  ground 
for  remonstrance  and,  it  might  be,  extreme  measures."  (Sir  John  Mac- 
donnell  in  London  Times  and  New  York  Times  for  May  25,  1905.) 

"If  a  mine-field  was  deliberately  created  out  in  the  open  ocean  by  the 
Russians,  in  such  a  position  that  it  was  as  likely  to  destroy  a  peaceful 
neutral  as  an  enemy's  warship,  words  fail  to  express  the  reprobation 
with  which  the  act  must  be  regarded.  It  is  not  only  illegal,  but  cruel 
to  the  highest  degree."  (Lawrence,  War  and  Neutrality  in  the  Tar  East, 
p.  107.) 

The  only  discordant  note  which  we  have  detected  in  this  general 
chorus  of  denunciation,  at  least  on  the  part  of  Rritish  and  American 
authorities,  was  that  voiced  by  Admiral  Sir  Cyprian  Bridge  of  the  Brit- 
ish Navy.  See  I^ndon  Times  and  New  York  Times  for  May  31,  1904. 
Officers  of  the  British  Navy  were  said  to  be  opposed  to  any  Iimilati(>ns 
upon  the  rights  of  naval  warfare.  Oflirials  of  our  own  War  and  Naval 
Departments  do  not  seem  to  have  entertained  such  fears  or  prejudices. 
See  New  York  Times  for  May  25,  1904. 


130  THE    RUSSO-JAPANESE    WAR 

whether  the  mines  were  anchored  or  intentionally  set  adrift 
outside  the  three-mile  limit.  If  neutrals  had  suffered  in- 
jury from  mines  which  were  accidentally  set  adrift  or  which 
had  floated  out  into  the  open  sea  in  consequence  of  having 
been  insecurely  fastened  in  territorial  waters,  there  would 
seem  to  have  been  good  ground  for  a  claim  for  damages; 
if,  on  the  other  hand,  it  had  been  proven  in  such  a  case 
that  the  mines  were  deliberately  placed  there,  severe  meas- 
ures would  probably  have  been  taken  by  the  neutral  Powers 
concerned. 

There  can,  of  course,  be  no  question,  in  the  present  state 
of  license  in  the  use  of  submarine  mines  and  torpedo  boats^® 
and  other  highly  destructive  weapons  of  modern  warfare, 
but  that  states  have  a  right  to  employ  these  devices  in  their 
own  harbors  and  territorial  waters  (as  also  in  those  of  the 
enemy)  within  the  three-mile  limit,  provided  that  the  life 
and  property  of  neutrals  and  non-combatants  be  not  care- 
lessly or  wantonly  jeopardized.^^  It  is  also  probable  that 
they  have  the  right  to  use  these  weapons  outside  of  territorial 
waters,  i.  e.,  on  the  high  seas,  with  the  specific  aim  of  injur- 
ing or  destroying,  or  of  obstructing  and  impeding  the  move- 
ments of  an  enemy  fleet,  provided  no  injury  which  can  pos- 
sibly be  avoided  result  to  neutrals.  ^^ 

^*  Count  Mouravieff's  proposal  to  "prohibit  the  use,  in  naval  warfare, 
of  submarine  topedo-boats  or  plungers,  or  other  similar  engines  of  de- 
struction," and  of  "new  explosives,  or  any  powders  more  powerful  than 
those  now  in  use,"  did  not  meet  with  the  approval  of  the  majority  of 
the  states  represented  at  the  Hague  Conference.  See  Holls,  Peace  Con- 
ference, p.  26  and  pp.  94~95-  This  does  not  aflfect  neutral  rights,  how- 
ever, as  the  New  York  Nation  (May  26,  1904)  seems  to  think. 

^  Neutrals  using  or  approaching  these  ports  or  waters  are  entitled  to 
notice  or  warning.  Whether  such  notice  or  warning  should  be  general 
or  specific  would  probably  depend  upon  circumstances. 

^  Such  injury,  if  not  due  to  the  fault  of  the  neutral,  would  undoubt- 
edly justify  a  claim  for  damages.   There  seems  to  be  this  difference  be- 


k 


SUBMARINE    MINES  I3I 

Centuries  of  practice  show  that  belligerents  have  an  un- 
doubted right  to  engage  in  battle  on  the  high  seas.  Neutrals 
must  take  cognizance  of  this  right  and  keep  out  of  the  range 
of  the  guns,  as  well  as  abstain  from  impeding  or  obstructing 
the  movements  of  the  vessels  of  either  belligerent.  Bellig- 
erents can  not  be  held  responsible  for  injury  to  a  neutral 
resulting  from  the  latter's  own  carelessness  or  intrepidity. 
On  the  other  hand,  the  belligerent  should  be  held  to  strict 
account  for  any  injury  which  neutrals  may  suffer  as  a  result 
of  the  belligerent's  own  carelessness  or  negligence,  or  from 
the  use  of  weapons,  such  as  submarine  mines,  as  to  the  exist- 
ence of  which,  in  that  particular  locality,  the  neutral  has  no 
knowledge.  Even  if  notified,  neutrals  could  hardly  be  ex- 
pected to  take  cognizance  of  the  existence  of  mines  on  the 
high  seas  within  what  has  loosely  been  termed  the  "theater 
or  zone  of  warlike  operations."  This  would  be  a  new  and 
hitherto  unheard-of  restriction  on  the  rights  of  neutrals 
which  could  not  be  imposed  without  an  international  agree- 
ment, the  enactment  of  which  should  be  resisted  to  the  ut- 
most by  all  seafaring  nations.^® 

In  respect  to  the  argument  that,  owing  to  the  increased 
range  of  modern  artillery,  the  three-mile  limit  ought  to  be 
increased  for  purposes  of  defense,  it  may  be  admitted  that 
there  is  much  force  in  this  contention.     For  the  protection 

tween  the  rights  and  privileges  of  neutrals  on  the  high  seas  and  in 
territorial  waters :  the  neutral  uses  the  high  seas  as  a  matter  of  right, 
and  the  presumption  is  in  his  favor;  in  territorial  waters,  the  neutral 
is  exercising  a  mere  privilege,  and  the  presumption  is  in  favor  of  the 
belligerent. 

"  It  may  be  that  there  are  exceptions  to  the  principles  enunciated 
above.  For  example,  a  belligerent  would  probably  have  the  right  to  de- 
fend the  anchorage  of  its  vessels  or  to  block  up  the  ships  of  the  enemy 
by  the  use  of  mines  outside  the  three-mile  limit.  The  use  of  such  mines 
would  doubtless  also  be  legitimate  in  the  case  of  blockade. 


132  THE    RUSSO-JAPANESE    WAR 

of  besieged  fortresses  like  Port  Arthur,  it  would  certainly 
seem  only  fair  to  the  besieged  that  the  three-mile  limit  be  ex- 
tended in  their  behalf  and  that  they  be  allowed  every  means 
of  defense  (including  mines)  permitted  by  the  laws  of  war- 
fare at  any  point  within  the  range  of  modern  guns.  Such 
is  not  the  law/^**  however,  and  a  change  in  the  law  would 
require  an  international  agreement  or  a  complete  change  in 
international  practice."^ 

The  three-mile  limit  or  the  marine  league  was  originally 
based  upon  the  principle  first  clearly  enunciated  by  the  Dutch 
jurist  Bynkershoek''"  in  the  early  part  of  the  eighteenth  cen- 
tury, to  the  effect  that  the  sovereignty  or  jurisdiction  of  a 
state  over  the  seas  extends  no  farther  than  its  power  to  de- 
fend the  sea  coast  by  force  of  arms — terra  dominium  Uni- 
tur  uhi  iinitur  armorum  vis,  i.  e.,  quousque  tormenta  ex- 
plondunter.  The  range  of  the  cannon  of  that  day  seems  to 
have  been  about  a  marine  league  or  three  geographical  miles, 
and  this  distance  became  the  generally,  if  not  universally, 
recognized  limit  of  territorial  waters  in  the  course  of  the 
eighteenth  century.     In  the  course  of  the  nineteenth  century 

^°  But  even  if  this  were  the  law,  it  would  not  justify  the  placing  of 
mines  in  the  open  sea,  e.g.,  in  the  neighborhood  of  Wei-hai-wei,  or 
such  acts  as  the  blowing  up  of  the  Hatsuse  ten  miles  southeast  of  Port 
Arthur. 

^^  "The  United  States  can  not  admit  that  Spain,  without  a  formal  con- 
currence of  other  nations,  can  exercise  exclusive  sovereignty  upon  the 
open  sea  beyond  a  line  of  three  miles  from  the  coast.  ...  It  can  not 
be  admitted  that  the  mere  assertion  of  a  sovereign,  by  an  act  of  legisla- 
tion, however  solemn,  can  have  the  eflfect  to  establish  and  fix  its  external 
maritime  jurisdiction.  This  right  to  a  jurisdiction  of  three  miles  is  de- 
rived, not  from  his  own  decree,  but  from  the  law  of  nations."  Secre- 
tary Seward  to  M.  Tessara,  Dec.  16,  1862,  and  Aug.  10,  1863.  See 
Wharton's  Dig.  I,  §  32,  pp.  102-103. 

^'  De  Domino  Maris,  ch.  2.  This  work  was  published  in  1702  or  1703. 
Cf.  the  vaguer  statements  of  Grotius  (Lib.  II,  ch.  3,  §§  13,  14)  and  Vat- 
tel  (Liv.  I,  ch.  23,  §  289). 


SUBMARINE    MINES  I  33 

the  rule  of  the  marine  league  appears  to  have  completely 
supplanted  the  principle  upon  which  it  was  originally  based 
and.  instead  of  being  extended  to  meet  the  demands  of  new 
modern  guns  of  ever-increasing  range,  it  remained  always 
the  same,  until  it  is  now  as  fixed  and  unalterable  apparently 
as  were  the  laws  of  the  Medes  and  the  Persians,  in  spite  of 
the  protests  of  publicists  and  the  efforts  of  statesmen.^'' 

There  can  be  no  doubt  that  an  extension  of  the  three-mile 
limit  for  all  territorial  puri)oses  would  be  highly  desirable. 
1'he  marine  league  no  longer  satisfies  the  demands  of  modern 
requirements  of  defense.  An  extension  to  meet  these  re- 
quirements is  certainly  favored  by  an  ever-increasing  ma- 
jority of  modern  publicists,  and  has  been  strongly  recom- 
mended by  the  Institute  of  International  Law."** 

"  The  majority  of  modern  publicists  appear  to  favor  an  extension  of 
the  three-mile  limit,  but  some  of  them  do  not  clearly  distinguish  be- 
tween the  present  three-mile  rule  and  the  principle  upon  which  it  was 
originally  based.  Among  those  who  may  be  cited  as  favoring  an  ex- 
tension of  the  present  rule  or  as  holding  that  Bynkershoek's  principle 
is,  or  ought  to  be,  the  rule  of  International  Law.  are  Bluntsclili,  §  302; 
Fiore,  §  788;  Calvo,  I.  8  356;  P.  Fodere.  II.  §8  360  ff;  Hautcfeuille,  1, 
89.  239;  Ortolan,  I,  ch.  8;  Heflfter,  §  75;  Rivier,  I,  Liv.  Ill,  ch.  I,  §  10; 
Phillimore,  Pt.  Ill,  ch.  8;  Hall.  §  41  ;  Taylor,  §  247. 

In  1806  the  American  Government  attempted  to  obtain  a  recognition 
of  a  six-mile  limit  from  England,  but  refused  to  acknowledge  the  va- 
lidity of  a  claim  of  six  miles  made  by  Spain  to  the  coast  of  Cuba  in 
1863.  But  in  the  following  year  (1864)  Secretary  Seward  prupused  a 
zone  of  five  miles  to  the  British  Legation  at  Washington.  The  British 
Government  has,  however,  always  insisted  upon  the  three-mile  limit. 

The  three-mile  limit  has  the  sanction  of  a  considerable  number  of 
State  and  International  Acts  or  Conventions,  r.  R..  the  Russian  Prize 
Rules  of  1869.  the  British  Territorial  Waters  Jurisdiction  Act  of  1878, 
the  North  Sea  I'ishcrics  Convention  of  1882.  the  Convention  of  Con- 
stantinople relating  In  the  Suez  Canal  of  1889.  For  list  of  treaties  sec 
Calvo.  I.,  p.  479. 

"The  Institute  of  International  Law.  at  its  Paris  session  in  1804. 
after  an  exhaustive  discussion  of  this  question,  gave  a  decisive  m.ijority 
(there  was  no  division  of  opinion  as  to  the  desirability  of  extending  the 


134  THE    RUSSO-JAPANESE    WAR 

It  is  highly  desirable  that  these  questions,  as  well  as  many- 
others  which  have  arisen,  more  particularly  those  relating  to 
neutrality,  contraband,  and  naval  warfare,  be  discussed  and, 
if  possible,  settled  by  the  coming  Hague  Conference.  In  re- 
spect to  the  questions  immediately  under  discussion  in  this 
chapter,  it  may  be  said  that  any  claims  for  damages  which 
may  arise  in  the  future  in  consequence  of  injury  to  neutrals 
from  submarine  mines  should  be  referred  to  arbitration, 
preferably  to  the  Hague  Tribunal;  but  to  wait  until  injury 
has  actually  resulted  to  neutral  individuals  or  to  neutral 
property  before  laying  down  the  rule  to  be  followed  in  such 
cases  would  not  seem  to  be  the  part  of  wisdom  or  sound 
policy.  Precautions  should  be  taken  in  time,  and  any  evil 
consequences  which  might  follow  upon  uncertainty  as  to  the 
rule  ought  to  be  averted,  if  possible.  In  respect  to  the  lay- 
ing of  submarine  mines,  the  very  least  that  neutral  states 
have  a  right  to  demand  is  that  these  highly  dangerous  ex- 
plosives be  restricted  to  territorial  or  belligerent  waters ;  or, 
if  their  use  be  permitted  upon  the  high  seas  for  any  purpose 
whatsoever,  that  they  be  anchored  in  such  a  way  that  they 
can  not  possibly  become  a  menace  to  neutral  vessels.  In  all 
such  cases  neutrals  should  receive  due  notice  and  the  mines 
should  be  carefully  removed  after  the  special  purpose  for 
which  they  have  been  placed  there  has  been  fulfilled. ■''' 

three-mile  limit)  in  favor  of  a  zone  of  six  marine  miles  for  all  territorial 
purposes  and  of  permitting  neutral  states  to  extend  it  still  farther  in 
time  of  war  for  the  purpose  of  defending  their  neutrality  against  a  bel- 
ligerent Power,  provided  the  range  of  cannon  was  not  exceeded.  The 
maritime  Powers  were  recommended  to  hold  an  International  Congress 
for  the  purpose  of  adopting  these  and  other  rules,  but  no  such  Congress 
has  ever  been  held.  See  Annuaire  de  I'Institut  de  Droit  International 
for  1894-95,  PP-  281-331. 

^' Oppenheim  (II,  §  182,  p.  190),  one  of  the  most  recent  authorities  on 
International  Law,  is  of  the  opinion  that  "the  matter  ought  to  be  rcgu- 


SUBMARINI-:    MIXES  1 35 

latcd  in  the  following  way:  Every  belligerent  is  allowed  to  drop  float- 
ing mechanical  mines  inside  his  own  or  the  territorial  waters  of  the 
enemy,  provided  warning  is  given  to  neutrals  to  avoid  the  waters  con- 
cerned. On  the  open  sea  no  dropping  of  such  mines  is  allowed  except 
inside  a  line  of  blockade.  In  any  case,  all  floating  mines  must  be  prop- 
erly moored,  so  as  to  prevent,  as  far  as  possible,  their  drifting  away. 
Under  no  circumstances  and  conditions  is  it  allowed  to  set  floating 
mines  adrift." 


Note. — At  its  recent  session  held  in  Ghent  during  the  last  week  of 
September,  1906,  the  Institute  of  International  Law  adopted  a  series  of 
articles  relative  to  wireless  telegraphy  and  submarine  mines  of  which 
the  following  is  a  summary  based  on  the  best  available  accounts: 

The  regulations  governing  wireless  telegraphy  in  time  of  peace  arc 
applicable  in  principle  in  time  of  war. 

Belligerents  may  prevent  the  transmission  of  Hertzian  waves  by  a 
neutral  state  over  the  high  seas  within  the  sphere  of  their  military  opera- 
tions. 

All  persons  taken  prisoner  while  receiving  or  transmitting  wireless 
messages  from  belligerent  territory  or  between  different  sections  of  a 
belligerent  army,  are  not  to  be  considered  spies,  but  arc  to  be  treated 
as  prisoners  of  war,  unless  their  operations  were  carried  on  under  false 
pretenses. 

Neutral  ships  and  balloons  proved  to  have  been  used  to  furnish  an  ad- 
versary with  information  helpful  in  the  conduct  of  hostilities  may  be 
removed  from  the  zone  of  hostilities  and  the  wireless  apparatus  on  board 
seized  and  sequestered. 

A  neutral  state  is  not  obliged  to  prevent  the  passage  across  its  terri- 
tory of  Hertzian  waves  destined  to  a  country  at  war.  A  neutral  state 
has  the  right  to  close  or  take  over  the  wireless  telegraph  station  of  a 
belligerent  operated  in  its  territory. 

It  is  forbidden  to  place  fixed  or  hidden  mines  in  the  open  sea.  Bel- 
ligerents may  place  mines  within  their  own  waters  and  the  water's  of 
the  enemy,  with  the  exception  of  floating  mines,  or  fixed  mines  liable 
to  break  loose  and  be  a  menace  to  navigation  in  waters  not  belonging  to 
belligerents.  The  foregoing  regulation  applies  to  neutral  states  wish- 
ing to  place  mines  in  their  own  waters  to  prevent  the  violation  of  neu- 
trality, but  neutral  states  can  not  place  such  mines  in  the  neighborhood 
of  straits  leading  to  the  open  sea.  .\  belligerent,  as  well  a«;  a  neutral 
state,  must  give  due  notification  of  the  placing  of  mines.  .-Vny  state  vio- 
lating the  foregoing  regulations  will  be  held  liable. 


CHAPTER    V 

Russian    Seizures   of   Neutral   Merchantmen — The 

Right  of  Visit  and  Search  and  the  Alleged 

Right  of  Destroying  Neutral  Prizes 

The  most  important  questions  of  International  Law  bear- 
ing upon  the  rights  of  neutrals  which  arose  during  the 
Russo-Japanese  War  grew  out  of  the  exercise  of  the  right 
of  visit  and  search  for  contraband  of  war  and  from  the 
seizure  of  neutral  vessels  in  the  Red  Sea  by  several  cruisers 
of  the  Russian  Volunteer  Navy,  as  also  the  seizure  and  ( in 
two  cases)  the  sinking  of  neutral  prizes  in  the  Pacific  Ocean 
by  the  Vladivostok  squadron  during  the  month  of  July, 
1904. 

Complaints  were  heard  almost  at  the  very  beginning  of 
the  war  against  the  searching  and  detention  of  neutral  mer- 
chantmen by  the  Russian  Mediterranean  fleet  in  the  Red 
Sea  and  against  the  detention  of  several  British  and  Amer- 
ican ships  at  Port  Arthur/  The  temporary  detention  of  the 
British  and  American  vessels  at  Port  Arthur,  whether  due 

^  It  was  also  reported  by  Admiral  Alexieff  that  the  German  cruiser 
Hansa,  engaged  in  transporting  German  subjects  from  Port  Arthur, 
was  fired  upon  by  Japanese  warships ;  but  the  circumstances  were  not 
described,  and,  according  to  Admiral  Alexieff's  own  admission,  the  ves- 
sel appears  to  have  harbored  Russians  in  the  guise  of  Germans.  The 
incident  seems  to  have  attracted  but  little  attention.  From  the  military 
correspondent  of  the  London  Times,  February  17,  1904. 

A  British  steamer  (the  Fu  Ping)  was  also  fired  upon  by  a  Russian 
guardship  as  it  was  leaving  Port  Arthur.  This  was  said  by  Admiral 
Alexieff  to  have  been  due  to  a  misunderstanding. 


RUSSIAN    SEIZURES    OF    NEUTRAL    VESSELS  1 37 

to  the  fact  that  they  harlx)red  Japanese  refugees*  or  whether 
caused  by  motives  of  mihtary  expediency.'  does  not  seem  to 
have  been  regarded  as  a  serious  matter  by  either  of  the  neu- 
tral Governments  concerned,  although  there  appears  to  have 
been  some  (hplomatic  corresixjndence  on  the  subject,  and.  in 
one  case  at  least,  a  claim  for  the  payment  of  demurrage.* 
It  is  probable  that  the  temporary  detention  for  military  pur- 
poses of  neutral  merchantmen  in  a  beseiged  or  blockaded 
port,  more  particularly  at  the  beginning  of  a  war,  would  be 
regarded  with  a  certain  degree  of  leniency  by  friendly  neu- 
trals. A  payment  of  demurrage  by  the  belligerent  govern- 
ment to  the  neutral  owners  is  probably  the  utmost  that  would 
l)c  expected  by  a  neutral  government''  under  these  circum- 
stances. 

A  much  more  serious  matter  was  the  stopping  and  search- 
ing of  a  number  of  neutral  merchantmen  in  the  Red  Sea  by 
the  Russian  Mediterranean  fleet  on  its  return  from  a  pro- 
jected voyage  to  the  Far  East  during  the  second  week  of  the 
war.  Three  neutral  colliers"  laden  with  steam  coal  ( which 
was    doubtless    destined    either    directly    or    indirectly    for 

'As  reported  in  the  case  of  the  British  steamer  ll\-n  Chow.  See 
London  Times  (weekly  edition),  February  19,  1904. 

'  The  American  steamship  Pleiades  was  by  some  supposed  to  have 
been  detained  for  strategic  reasons.  See  New  York  Times  for  Febru- 
ary 14,  1904. 

*  We  note  that  the  Russian  Government  granted  compensation  to  the 
owners  of  the  Uritish  vessel — the  steamer  I-oxtoti  Hall — for  loss  sus- 
tained during  her  detention  at  Port  .Arthur  in  February.  See  New  York 
Times  for  August  4,  1904. 

*  It  would,  of  course,  be  diflFcrent  in  the  case  of  a  war  vessel. 

*  Two  of  them,  the  Frankly  and  the  Ettriekdale,  were  British  and 
one,  the  Matilda,  was  Norwegian.  For  a  summary  of  the  facts  sec 
Lawrence.  War  and  yeutrality  (2d  ed.).  pp.  114  f.  The  Russian  Gov- 
ernment agreed  to  indemnify  the  owners  of  the  British  colliers  Frankly 
and  Fttrickdale.    See  New  York  Times  for  September  10.  1904. 


138  THE    RUSSO-JAPANESE    WAR 

Japan)  were  seized  and  brought  as  prizes  into  the  Gulf  of 
Suez  within  Egyptian  territorial  waters.  Here  they  were 
detained  for  about  four  days,  and  in  the  meantime  these 
waters  were  used  as  a  base  of  anchorage  from  which  to  over- 
haul neutral  vessels,  in  spite  of  the  protests  of  the  Egyptian 
Government.  The  colliers  were  soon  released,  however,  in 
response  to  a  telegraphic  order  from  the  Czar,  on  the  ground 
that  these  captures  had  been  made  before  the  Russian  Gov- 
ernment had  fomally  declared  coal  contraband  of  war. 

The  return  of  the  Russian  Mediterranean  fleet  to  the  Bal- 
tic, the  prolonged  inactivity  of  the  Baltic  fleet,  and  the  prac- 
tical bottling  up  or  blockade  of  the  Russian  fleet  at  Port 
Arthur  almost  from  the  beginning  of  the  war,  left  the  control 
of  the  high  seas  and  of  contraband  trade  in  the  hands  of 
neutral  nations  and  the  Japanese,  except  for  an  occasional 
sortie  by  the  Vladivostok  fleet  which  inflicted  some  serious 
damage  upon  Japanese  transports.  There  seems  to  have 
been  no  serious  interference  with  neutral  trade  until  the 
seizure  of  the  Allanton  on  June  16  and  the  Cheltenham 
early  in  July,  1904,^  for  the  carriage  of  contraband. 

These  seizures  had  excited  some  interest  and  controversy, 
when  the  world  was  suddenly  electrified  by  the  news  that 
two  cruisers,  the  Peterhiirg  and  the  Smolensk,  belonging  to 
the  Russian  Volunteer  fleet  in  the  Black  Sea,  had  made  their 
way  early  in  July,  1904,  out  of  the  Bosporus  and  the  Dar- 
danelles into  the  Mediterranean  as  merchantmen  (both  of 
them  flying  the  commercial  flag) ,  passed  through  the  Suez 
Canal,  and  were  holding  up  and  seizing  neutral  vessels  in  the 
Red  Sea.^     These  vessels  had  apparently  passed  through 

~  These  seizures  will  be  discussed  in  the  next  chapter. 
*  The  Russian  Volunteer   steamer  Sevastopol  was  also   reported  to 
have  passed  the  Bosporus  on  July  6,  in  company  with  the  Peterburg. 


RUSSIAN-    SLIZURES    OF    XKITKAL    VESSELS  1 39 

the  Straits  (as,  indeed,  appears  to  have  been  their  custom  for 
some  years  past)  without  protest  from  Turkey  or  the  Pow- 
ers; but  a  terrible  storm  of  indignatifjti  was  excited  in  Eng- 
land when  it  was  learned  that  the  British  liner  Malacca,  be- 
longing to  the  Peninsula  and  Oriental  Navigation  Company 
and  bound  for  Yokohama  via  Hong  Kong,  had  been  arrested 
by  the  Fctcrbitrg  in  the  Red  Sea  on  July  13"  on  a  charge  of 
carrying  contraband,  and  was  being  brought  to  Port  Said 
through  the  Suez  Canal  as  a  prize  in  the  custody  of  a  Russian 
prize  crew  and  flying  the  Russian  flag.  At  about  the  same 
time  much  excitement  was  created  in  Germany  by  the  new-, 
that  the  German  mail  steamer  Prinz  Ilcitirich  had  been 
stopped  by  the  Smolensk  on  July  15  and  that  a  portion  of  her 
mail  destined  for  Japan  (two  mail  bags  for  Nagasaki)  had 
been  confiscated,  the  remaining  porliiMi  ha\inLr  been  trans- 
ferred to  the  British  steamer  Persia,  which  was  forcibly  de- 
tained for  that  purpose.'" 

Both  the  British  and  German  Governments  at  once  entered 
vigorous  protests  against  what  they  regarded  as  violations 
of  neutral  rights.  The  German  Govermnent  claimed  that, 
while  "the  e.xercise  of  the  droit  dc  visitc  in  the  case  of  mail 
steamers  may  perhaps  be  justifiable,  the  confiscation  of  mail 
bags   directly   contravenes   the  provisions   of    International 

She  was  said  to  be  tlyiiiK  the  Red  Cross  llag  in  addition  to  the  com- 
mercial flag.  It  was  also  learned  that  the  Russian  guardship  Chcrno- 
morctz,  a  gun  vessel  belonging  to  the  regular  Black  Sea  fleet,  had  been 
sent  through  the  Straits  f)n  July  16.  but  it  was  subsequently  stated  that 
this  vessel  had  gone  to  the  Pir.x'us  in  Greece  on  its  usual  voyage. 

•The  news  did  not  reach  the  public  before  July  17,  1904.  Several 
British  vessels  had  been  visited  and  searched  prior  to  the  seizure  of  the 
Malacca,  but  these  had  merely  been  detained  for  a  short  time. 

'"A  section  of  the  Knglish  press  had  commented  very  strongly  upon 
the  detention  and  search  of  the  British  mail  steamer  Osiris  by  the  Rus- 
sian gunboat  Krahri  early  in  M.iv.   nxvi     See  I^nwrence.  (>/>.  cit..  p    185. 


I40  THE    RUSSO-JAPANESE    WAR 

Law."^^  It  asked  for  a  disavowal  of  the  S)noIc)isk's  action 
and  the  return  of  the  captured  mail  bags.  These  demands 
were  readily  agreed  to  by  the  Russian  Government,  and  the 
German  Government  was  assured  that  the  confiscated  mail 
sacks  would  be  returned  as  soon  as  possible,  and  that  the 
German  mails  would  not  again  be  molested  by  the  Russian 
auxiliary  cruisers.  Russia  also  agreed  to  indemnify  the 
German  shippers  and  consignees  for  any  losses  sustained  on 
account  of  the  seizure  of  the  German  ships  and  the  detention 
of  German  mails. 

The  British  Government,  in  addition  to  a  protest  and  a 
demand  for  the  immediate  release  of  the  Malacca  which  ap- 
pears to  have  amounted  to  an  ultimatum,  is  said  to  have  in- 
structed the  British  Mediterranean  fleet  under  the  command 
of  Admiral  Domville^"  to  patrol  the  Red  Sea  and  prevent 
any  further  molestation  of  British  steamers  by  Russian  mer- 
chantment  suddenly  transformed  into  warships.  Charges 
of  "piracy"  were  freely  made  by  the  most  conservative  Lon- 
don newspapers,  and  public  opinion  in  England  appears  to 
have  been  a  unit  in  support  of  the  firm  attitude  of  the  British 
Government. 

The  British  protest  against  the  seizure  of  the  Malacca  was 
partly  based  upon  the  ground  that  part  of  the  contraband 
which  the  steamer  was  alleged  to  be  carrying  consisted  of 
British  Government  stores  (forty  tons  of  lyddite,  each  case 
of  which  was  marked  with  the  broad  arrow  or  Government 

"  See  London  Times  (weekly  edition)  for  July  22,  1904.  Germany 
does  not  seem  to  have  raised  the  question  of  the  status  of  the  Smolensk. 

"Admiral  Domville  is  reported  to  have  detached  two  of  his  cruisers 
with  orders  to  proceed  to  Port  Said,  with  a  view  of  retaking  the  Ma- 
lacca in  case  an  effort  were  made  to  take  her  to  a  Russian  prize  court. 
They  fortunately  failed  to  reach  Port  Said  before  the  departure  of  the 
Malacca  from  that  port. 


RUSSIAN    SEIZURES    OF    NEUTRAL    VESSELS  I4I 

Stamp)  consigned  to  the  British  naval  station  at  Hong  Kong 
anrl  intended  for  the  use  of  the  British-China  squadron. 
Sir  Charles  Hardinge,  the  British  ambassador  at  St.  Peters- 
burg, also  presented  a  general  protest  against  the  exercise  of 
the  right  of  search  and  seizure  by  vessels  of  the  Russian 
Volunteer  Navy,  the  question  of  the  right  of  these  vessels 
to  pass  the  Bosporus  and  Dardanelles  not  having  been  di- 
rectly raise<l.''  The  Russian  officials  contended,  on  the 
other  hand,  that  the  Malacca,  in  addition  to  British  Govern- 
ment stores,  had  on  board  munitions  of  war  intended  for  the 
use  of  the  Japanese,  and  that  the  captain  of  the  Malacca  had 
refused  to  show  the  manifest  of  his  cargo.** 

The  Russian  Government,  acting,  it  is  said,  in  accordance 
with  the  personal  wishes  of  the  Czar  and  u|)()n  the  advice  of 
the  French  Governiucnl.  finally  (on  July  21  )  consented  to 
release  the  Malacca  uj)on  the  assurance  of  the  British  Gov- 
ernment that  the  war  nuinitions  on  hoard  the  vessel  were 
British  Government  stores,  and  after  a  perfunctory  or  f>ro 
forma  examination  of  the  cargo  by  a  British  and  Russian 
consul.'"'  Russia  also  i)romised  that  no  similar  incident 
should  occur  in  the  future,  and  agreed  to  instruct  the  officers 
of  her  Volunteer  Navy  to  refrain  from  interference  with 
neutral  shipping  in  the  future  on  the  ground  that  "the  pres- 
ent status  of  the  Volunteer  fleet  was  not  sutTiciently  well 
defined,  according  to  International  Law.  to  riMidor   further 

"The  British  Government  .ippcars  ti>  have  raised  the  (jin-.titMi  of  the 
status  of  the  vessels  of  the  Russian  Volunteer  fleet  rather  than  to  have 
charRed  Russia  with  a  violation  of  the  Ireaties  of  Pans  an<l  I,<indon. 

"This  was,  however,  emphatically  denied  by  the  .*>ecretary  of  the 
Peninsular  and  Oriental  Navigation  Company.  See  letter  to  the  Lon- 
don Times  (weekly  ed.)  for  August  5,  1904. 

"This  examination  was  held  at  Algiers  on  July  27.  and  the  vessel 
was  released  in  accordance  with  this  agreement. 


142  THE    RUSSO-JAPANESE    WAR 

searches  and  seizures  advisable."  There  was  no  agreement 
in  principle  on  the  broader  question  of  the  right  of  the  pas- 
sage of  the  Straits  on  the  part  of  these  vessels/*'  and  con- 
siderable excitement  was  caused  in  both  England  and  Ger- 
many by  the  subsequent  seizure  of  one  German  and  several 
British  ships^"  in  the  Red  Sea;  but  these  seizures  were  said 
to  have  been  due  to  a  failure  on  the  part  of  the  Russian  Gov- 
ernment to  convey  to  the  captains  of  the  Russian  cruisers  a 
new  set  of  instructions  in  time  to  prevent  such  action.  They 
were  speedily  released  on  July  27,  on  the  same  day  and  on 
the  same  terms  as  in  the  case  of  the  Malacca.^^ 

No  sooner  had  the  case  of  the  Russian  detentions  and 
seizures  in  the  Red  Sea  been  thus  practically  disposed  of  than 
there  was  renewed  excitement  in  consequence  of  the  news 

'"  This  is  based  on  Premier  Balfour's  statement  to  the  House  of  Com- 
mons on  July  28.  See,  e.  g.,  New  York  and  London  Times  for  July  29, 
1904.  See  also  Lord  Landsdowne's  statement  to  the  House  of  Lords  on 
the  same  date. 

"  The  German  Scandia  and  the  British  Ardova  and  Formosa.  The 
cargo  of  the  Ardova  is  said  to  have  included  military  supplies  consigned 
to  the  United  States  Government  at  Manila. 

"  See  the  London  Times  and  New^  York  Times  for  August  26,  1904, 
and  Lawrence,  op.  cit.,  pp.  21  sf.  It  was  now  generally  assumed  that 
there  would  be  no  further  trouble  of  this  kind ;  but  in  the  latter  part  of 
August,  1904,  the  British  public  was  again  excited  by  the  news  that  the 
Smolensk  had  appeared  in  South  African  waters  on  August  21,  and  had 
visited  the  British  Steamer  Comedian.  Count  LamsdorflF,  the  Russian 
Minister  of  Foreign  Afifairs,  explained  that  the  instructions  to  abstain 
from  further  searches  and  seizures  had  failed  to  reach  the  Smolensk, 
and  he  took  the  extraordinary  and  humiliating  step  of  requesting  the 
British  Government  to  convey  to  her  officers  the  orders  of  the  Russian 
Government.  It  was  reported  that  no  less  than  seven  vessels  were  sent 
out  by  the  British  Admirality  to  find  this  cruiser  which  was  finally  dis- 
covered off  Zanzibar  on  September  7.  She  apparently  condescended  to 
yield  obedience  to  the  orders  received  through  the  hands  of  the  British 
Government,  for  she  gave  no  further  trouble  and  one  of  the  most  ex- 
ceptional and  extraordinary  incidents  in  the  history  of  naval  warfare 
and  International  Law  was  closed. 


I 


I 


RUSSIAN    SEIZURES    OF    NEUTRAL    VESSELS  I43 

that  several  neutral  as  well  as  Japanese  merchant  vessels  had 
been  sunk  on  July  23  and  J4,   1904,'"  by  the  Vladivostok 

"  The  British  steamer  Hipsang  was  also  reported  to  have  been  tor- 
pedoed and  a  portion  of  its  crew  drowned  or  wounded  by  the  Russians 
in  Pigeon  Bay,  near  Port  Arthur,  on  July  16;  but  this  act,  which  oc- 
curred in  belligerent  waters,  does  not  seem  to  have  excited  much  inter- 
est or  controversy,  and  it  belongs  to  an  entirely  different  order  of 
phenomena  from  those  discussed  in  the  text.  One  reason  given  by  the 
Russians  for  the  destruction  of  the  Hipsang  was  that  the  steamer  re- 
fused to  stop  when  ordered  to  do  so.  (See  special  cable  to  London  and 
New  York  Times  from  Shanghai,  July  26)  ;  another  was  that  they 
mistook  her  for  a  Japanese  vessel.  (See  Associated  Press  dispatch  in 
New  York  Times  for  August  5.)  A  British  navel  court  of  inquiry  held 
at  Shanghai  on  August  22  exonerated  the  captain  of  the  Hipsang  and 
found  that  he  acted  correctly  in  all  respects.  It  denied  that  he  refused 
to  stop  when  ordered  to  do  so,  and  claimed  that  there  was  no  contra- 
band, and  that  there  were  no  Japanese  on  board  the  vessel.  See  New 
York  Times  for  August  24,  and  London  Times  (weekly  ed.)  for  August 
26,  1904.   See  also  Lawrence,  op.  cit.,  pp.  259-60. 

It  will  be  seen  from  the  above  scattered  and  fragmentary  reports  that 
it  is  not  at  all  clear  what  the  charges  against  the  Hipsang  really  were. 
In  any  case,  whether  carrying  contraband  or  engaged  in  an  unneutral 
service,  she  should  not  have  been  destroyed,  except  in  case  of  necessity 
or  of  continued  or  obstinate  resistance  to  arrest.  If  the  finding  of  the 
British  naval  court  of  inquiry  is  correct,  it  would  seem  that  a  great 
and  wanton  outrage  was  committed  and  that  the  owners  of  the  vessel 
were  entitled  to  indemnity  and  the  British  Government  to  an  apolog>'. 

For  the  finding  of  the  British  Naval  Court  at  Shanghai,  see  London 
Times  (weekly  ed.)  for  November  25,  1904.  It  shows  the  destruction 
of  the  Hipsang  to  have  been  entirely  unjustifiable. 

Several  other  neutral  vessels  arc  also  said  to  have  been  sunk  by  the 
Russians  later  in  the  struggle,  e.  g.,  the  British  steamers  St.  Kilda  and 
Ikhona  on  June  5,  and  the  Danish  steamer  Princess  Marie  on  June  22, 
1905.  These  vessels  appear  to  have  been  guilty  of  the  oflFense  of  "carry- 
ing contraband."  In  response  to  representations  on  the  part  of  the 
British  Government,  Count  I^imsdorflF  handed  to  Sir  Charles  Hardinge, 
the  British  ambassador  at  St.  Petersburg,  instructions  from  the  Russian 
Admiralty  to  captains  of  cruisers  ordering  them  to  abstain  from  sink- 
ing neutral  vessels.  The  instructions  are  said  to  have  been  delivered 
by  British  warships.  Sec  London  Times  (weekly  ed.)  for  June  30, 
ux^S.  p-  403.  Early  in  August,  1905,  we  heard  of  another  British  steamer, 
the  Oldhama,  which  had  rtni  ashore  at  IViip  Island,  a  part  of  whose 
crew   was  rescued  by  tlic  Japanese.    London    Times    (weekly  cd.)    for 


144  THE    RUSSO-JAPANESE    WAR 

squadron  in  one  of  its  occasional  sorties  on  the  Pacific  Ocean 
— vie,  the  Knight  Commander,  a  British  steamer  with  an 
American  mixed  cargo  (including  flour  and  railway  ma- 
terials) from  New  York  consigned  to  various  Eastern  ports, 
and  the  Thea,  a  German  merchantman  with  a  cargo  of 
canned  fish  consigned  to  Japanese  ports.  At  about  the  same 
time  (July  25),  news  was  received  of  the  capture  (on  July 
22)  of  the  Arabia,  another  German  vessel  with  an  American 
cargo  of  flour  and  railway  material  consigned  to  Japanese 
ports,  and  the  seizure  of  the  British  steamer  Calchas,  with  a 
cargo  of  flour  and  machinery  destined  for  Japan,  on  July 
26.^° 

The  sinking  of  the  Thea  appears  to  have  excited  very  little 
interest  in  Germany,  but  the  sinking  of  the  Knight  Com- 
mander created  a  storm  of  indignation  in  England  which 
almost  rivalled,  if,  indeed,  it  did  not  surpass,  that  caused  by 
the  seizure  of  the  Malacca.  It  was  condemned  on  all  sides 
as  a  gross  outrage  on  the  rights  of  neutrals  and  a  serious 
violation  of  International  Law.^^  The  British  Government 
entered  an  energetic  protest  at  St.  Petersburg  against  the 
sinking  of  the  Knight  Commander  on  the  ground  that  "it  is 
not  proper  that,  on  the  authority  of  the  captain  of  a  cruiser, 
goods  alleged  to  be  contraband  of  war  should  be  taken  from 

August  II,  1905,  p.  499.  It  would  be  an  interesting  question  in  social 
psychology  to  ascertain  why  these  seizures  and  sinkings  did  not  excite 
the  mind  of  the  British  public  as  did  the  sinking  of  the  Knight  Com- 
mander. 

^  These  cases,  which  involve  questions  of  contraband,  will  be  consid- 
ered in  the  succeeding  chapter. 

"  Even  Premier  Balfour  stated  in  the  House  of  Commons  that  it  was 
"contrary  to  the  practice  of  nations  in  war  time,"  and  Lord  Lansdowne 
characterized  it  in  the  House  of  Lords  as  a  serious  breach  of  Interna- 
tional Law,"  and  an  outrage.   See  New  York  Times  for  July  29,  1904. 


RUSSIAN    SEIZURES    OF    NEUTRAL    VESSELS  1 45 

a  merchant  sliii)  without  trial."-"  It  is  hchcved  that  the 
Russian  Gfnernnicnt  was  requested  to  make  ample  amends 
by  way  of  apology  and  reparation  for  this  "outrage,"  and  it 
certainly  received  an  intimation  from  the  British  Govern- 
ment to  the  effect  that  a  repetition  of  acts  similar  to  the 
seizure  of  the  Malacca  and  the  sinking  of  the  Knight  Com- 
mander would  not  he  tolerated  l»y  the  luiglish  people.*^  A 
strong  protest  against  the  Russian  doctrine  of  contraband 

"See  Premier  Balfour's  statement  in  the  House  of  Commons,  cited 
above.  He  added:  "The  proper  course,  according  to  international  prac- 
tice, is  that  any  ship  reasonably  suspected  of  carrying  contraband  of 
war  should  be  taken  by  the  belligerent  to  one  of  its  own  ports,  and  its 
trial  should  there  occur  before  a  prize  court,  by  which  the  case  is  to  be 
determined.  Evidently,  if  it  is  left  to  the  captain  of  a  cruiser  to  decide 
on  his  own  initiative  and  authority  whether  particular  articles  carried 
on  a  ship  arc  or  are  not  contraband,  what  is  not  merely  a  practice  of 
nations,  but  what  is  a  necessary  foundation  of  equitable  relations  be- 
tween belligerents  and  neutrals  would  be  cut  down  to  the  root."  "Un- 
der no  hypothesis,"  said  Lord  Landsdowne  in  the  House  of  Lords,  "can 
the  Government  conceive  that  a  neutral  ship  could  be  sunk  on  the  mere 
fiat  of  a  cruiser's  commanding  officer,  who  assumed  that  the  cargo  of 
the  vessel  included  articles  which  were  contraband."  Cf.  Lord  Lans- 
(lowne  to  Sir  C.  Harding,  Dispatch  No.  Jo  in  Parliamentary  Blue  Book 
on  Russia,  No.  i   (1905). 

°"Vou  should  make  it  clear  that  should  the  Russian  Government  act 
upon  their  extreme  contentions  with  regard  to  contraband  of  war,  and 
the  treatment  of  vessels  accused  of  carrying  it,  His  Majesty's  Govern- 
ment will  be  constrained  to  take  such  precautions  as  may  seem  to  them 
desirable  and  sufficient  for  the  protection  of  their  commerce."  Lord 
Lansdowne,  to  Sir  C.  Hardinge  in  Dispatch,  cited  above.  The  Depart- 
ment of  State  at  Washington  also  informed  the  Russian  Government 
on  July  30,  1904.  that  if  if  be  the  case,  as  represented,  "that  the  Kntght 
Commander  was  under  .\merican  charter  anti  was  carrying  American 
property  .  .  .  the  Government  of  the  United  States  would  view  with 
the  gravest  concern  the  application  of  similar  treatment  to  .American 
vessels  and  cargoes,  and  that  this  Government  reserves  all  rights  of  se- 
curity, regular  treatment,  and  reparation  for  .-Xmerican  cargo  on  the 
Knight  Commander  and  in  any  seizure  of  American  vessels."  House 
Doc.  of  58th  Congress,  3d  session  (Foreign  Relations.  njniV  n    734. 


146  THE    RUSSO-JAPANESE    WAR 

was  also  made  by  the  British  as  well  as  by  the  American 
Governments  at  the  same  time  (August  10,  1904) . 

The  Russian  Government  in  its  reply  appears  to  have  ex- 
pressed its  willingness  to  make  reparation  provided  it  were 
shown  to  have  been  guilty  of  a  violation  of  any  principle  of 
International  Law,  but  to  have  strenuously  insisted  at  the 
same  time  that  there  had  been  no  such  violation.  It  justi- 
fied its  right  to  sink  the  Knight  Commander  on  the  ground 
that  the  vessel  contained  contraband  of  war,  vis.,  railway 
material  and  machinery,  and  because  her  captor  was  ''unable 
to  bring  her  to  the  nearest  Russian  port  without  manifest 
danger  to  the  squadron,  owing  to  her  not  having  enough 
coal/'^'" 

It  was  also  urged  that  such  action  was  entirely  in  accord 
with  the  Russian  Prize  Regulations  as  well  as  the  principles 
of  International  Law.  Owing  to  the  strong  position  taken 
by  the  British  Government,  the  Russian  Government  agreed, 
however,  to  have  the  case  reviewed  by  a  special  Admiralty 
Court  at  St.  Petersburg., ^^  and  consented  to  modify  its  in- 
structions to  its  naval  commanders  on  certain  points.  They 
were  accordingly  instructed -*'   on   August   5    "not  to  sink 

'*  See  the  report  of  Vice-Admiral  Skrydloff  in  the  New  York  Times 
for  August  3,  1904.  See  also  the  Russian  official  report  in  London 
Times  (weekly  ed.)  for  August  12,  1904.  It  was  also  charged  that  the 
Knight  Commander  did  not  stop  until  after  several  blank  shots  had 
been  fired.  (Admiral  Skrydlofif's  report  says  tzvo,  the  Russian  official 
report  says  four  shots  were  fired.)  Such  resistance  might,  if  proven,  be 
held  to  justify  condemnation,  but  could  not  possibly  justify  the  sinking 
of  the  vessel  except  as  the  result  of  a  struggle. 

^  The  Vladivostok  Prize  Court  had  rendered  a  decision  justifying  the 
sinking  of  the  vessel.  See  London  Times  (weekly  ed.)  for  August  12, 
1904.  The  British  Government  refused,  however,  to  be  satisfied  with 
this  verdict. 

^  In  spite  of  these  instructions  one  Danish  and  several  British  vessels 
were  sunk  by  Russian  cruisers  belonging  to  Admiral  Rojestvensky's  ill- 


RUSSIAN    SEIZURES    OF    NEUTRAL    VESSELS  1 47 

neutral  merchantmen  with  contraband  on  board  in  the  future 
except  in  cases  of  direst  necessity,  but  in  cases  of  emergency 
to  send  prizes  into  neutral  ports.""'  The  decision  of  the 
Vladivostok  Prize  Court  which  condemned  the  Knight 
Commander  was  subsequently  reversed  by  tiie  Admirality 
Court  at  St.  Petersburg,  and  an  indemnity  of  about  £ioo,- 
000  was  paid  by  Russia  to  the  British  Government.^" 

These  seizures  and  the  destruction  of  neutral  prizes  raise 
a  number  of  very  important  questions  in  International  Law, 
but  the  most  important  of  these,  vh.,  those  connected  with 
the  subject  of  contraband  of  war,  will  be  reserved  for  a 
separate  discussion  in  the  next  chapter.  The  discussion  in 
this  chapter  will  be  confined  to  questions  relating  to  the  right 

fated  Baltic  fleet  in  June,  1905: — the  British  steamer  St.  Kilda  by  the 
Russian  cruiser  Dncifcr  on  June  S  in  the  China  Sea  (see  the  Chicago 
Tribune  for  June  19,  and  London  Times — weekly  ed. — for  July  14, 
1905)  ;  the  British  mail  steamer  Iklwtta  by  the  Russian  cruiser  Terek  in 
the  China  Sea  on  June  5.  (See  London  Times — weekly — for  June  30, 
1905)  ;  and  the  Danish  vessel  Princess  Marie  by  the  Terete  on  June  29. 
The  only  circumstantial  account  we  have  is  that  concerning  the  sinking 
of  the  Iklwna  by  the  Terek.  It  appears  that  the  cargo  of  the  Ikhona, 
a  British  steamer  carr>ing  mails  from  Rangoon  to  Yokohama,  consisted 
mainly  of  rice  and  wheat.  As  soon  as  the  captain  of  the  Terek  boarded 
her,  he  observed ;  "This  is  contraband.  We  must  sink  you  as  we  are 
unable  to  convey  you."  The  officers  and  crew  of  the  Ikhona  were 
treated  with  the  greatest  kindness  and  consideration.  See  London 
Times  cited  above,  p.  403. 

"  Chicago  Tribune  for  .'\ugust  6,  1904.  In  her  reply  of  August  12  to 
the  British  representations,  Russia  is  reported  to  have  refused  to  recede 
entirely  from  her  position  as  set  forth  in  her  "Prize  Regulations,"  and 
to  have  reserved  the  right  to  destroy,  in  cases  of  emergency,  neutral 
vessels  carrying  contraband.  At  the  same  time  she  is  said  to  have  as- 
sured Great  Britain  that  no  more  neutral  vessels  would  be  sunk  unless 
circumstances  should  render  it  impossible  to  bring  them  before  a  prize 
court.  St.  Petersburg  dispatch  to  the  Chicago  Tribune  tor  August  u, 
1904. 

*■  See  London  Tinus  (weekly)  frr  March  \'.  I*X35. 


148  THE    RUSSO-JAPANESE    WAR 

of  visit  and  search,  of  capture,  the  seizure  of  mails,  and  the 
destruction  of  neutral  prizes  on  the  high  seas. 

The  most  important  question  of  International  Law  arising 
from  the  seizures  in  the  Red  Sea  was  that  the  status  of  the 
cruisers  belonging  to  the  Volunteer  Fleet  of  the  Russian 
Navy.  It  was  not,  as  frequently  stated  in  the  newspapers, 
the  question  as  to  whether  these  vessels  had  the  right  to  pass 
through  the  Bosporus  and  the  Dardanelles  with  or  without 
the  distinct  purpose  of  being  converted  into  warships.  That 
is  a  question  of  international  policy  and  treaty  interpretation 
rather  than  of  International  Law.-** 

The  right  of  visit  and  search  of  all  neutral  merchantmen 
on  the  high  seas  by  all  lawfully  commissioned^''  warships  of 

^  According  to  a  series  of  great  international  treaties,  warships  are 
not  allowed  to  pass  through  the  Straits,  but  merchant  vessels  are  ex- 
pressly permitted  to  do  so.  The  present  rule  goes  back  to  the  London 
Treaty  of  1841,  which  sanctioned  the  ancient  rule  of  the  Ottoman  Em- 
pire forbidding  all  foreign  ships  of  war  from  entering  these  waters. 
These  stipulations  were  reaffirmed  by  the  Treaty  of  Paris  (1856),  the 
London  Conference  (1871),  and  the  Treaty  of  Berlin  (1878).  It  has 
been  claimed  that  Russia  and  Turkey  entered  into  a  convention  in  1891 
to  permit  the  passage  of  the  Straits  by  vessels  belonging  to  the  Russian 
Volunteer  Navy,  but  Premier  Balfour  disclaimed  all  knowledge  of  such 
an  agreement  in  the  House  of  Commons.  Certain  it  is  that  Russia  has 
been  in  the  habit  for  some  years  of  sending  these  vessels  through  the 
Straits  under  her  merchant  flag.  The  British  Government  appears  to 
have  been  saving  its  rights  by  occasional  protests. 

The  vessels  of  modern  Volunteer  Fleets  or  Auxiliary  Navies  occupy 
a  new  and  somewhat  anomalous,  although  fully  established,  position  in 
modern  warfare  and  International  Law.  They  are  in  theory  merchant- 
men when  nations  are  at  peace,  but  may  readily  be  converted  into  war- 
ships in  time  of  war.  Those  belonging  to  Russia  have  crews  which  are 
subject  to  naval  discipline  and  are  under  the  control  of  officers  of  the 
Russian  Navy.  Originally  built  by  a  great  voluntary  subscription  shortly 
after  the  Russo-Turkish  War  of  1877-78,  they  are  at  all  times  in  the 
service  of  the  state  to  which  they  belong,  and  are  used  for  military  as 
well  as  for  commercial  purposes. 

'"  "In  the  absence  of  a  commission,  a  right  of  search  and  capture  does 


THE    RIGHT    OF    VISIT    AND    SEARCH  1 49 

a  belligerent  government  is  one  which  has  never,  so  far  as 
we  are  aware,  been  denied  by  any  one,  least  of  all  by  Great 
Britain,  the  great  champion  of  belligerent  rights  on  the  high 
seas.  As  Lord  Stowcll  (then  Sir  W.  Scott),  perhaps  the 
greatest  prize  court  jurist  the  world  has  ever  seen,  said  in 
1799  in  the  famous  case  of  the  Maria  (  I  Robinson,  359)  : 
"The  right  of  visiting  and  searching  merchant  ships  on  the 
high  seas,  whatever  be  the  ships,  whatever  be  the  cargo, 
whatever  be  the  destination,  is  an  incontestable  right  of  the 
lawfully  commissioned  ship  of  a  belligerent  nation.  .  .  . 
This  right  is  .so  clear  in  principle  that  no  man  can  deny  it 
who  admits  the  legality  of  maritime  capture,  because  if  you 
are  not  at  liberty  to  ascertain  by  sufficient  inquiry  whether 
there  is  property  that  can  be  legally  captured,  it  is  im|)ossible 
to  capture.  .  .  .  The  right  is  equally  clear  in  practice." 
"It  is,"  admits  Premier  Balfour,  "undoubtedly  the  duty  of  a 
captain  of  a  neutral  ship  to  stop  when  summoned  to  stop  by 
a  cruiser  of  a  belligerent  and  to  allow,  without  difficulty,  his 
papers  to  be  examined."^'  I^csistnnce.  whether  real  or  con- 
not  exist  a.s  against  neutrals."  See  Taylor,  Public  International  Lau\ 
p.  497,  and  the  cases  there  cited. 

*'  Premier  Balfour  in  the  House  of  Commons  on  July  28.  1904.  In  his 
remarks  to  the  House  of  Commons  on  August  11,  Premier  Halfour  ad- 
mitted, however,  that  "in  these  days  of  huge  ships,  there  were  difficulties 
in  the  way  of  examination  of  cargo  which  did  not  exist  formerly;  and 
this  examination,  though  not  forhiddcn  hy  International  Law.  was  made 
almost  impossihle  by  the  difficulty  of  the  operation."  The  right  of  visit 
and  search  must  not  be  confounded  with  the  right  of  capture,  which  is 
much  less  absolute  and  which  is  only  justifiable  under  certain  condi- 
tions which  we  need  not  here  enumerate.  Of  course,  the  right  of  visit 
and  search  is  also  limited  in  several  ways.  In  the  first  place,  it  is  strictly 
a  belligerent  right,  and  unless  there  be  a  strong  suspicion  of  piracy,  it 
can  not  be  exercised  in  time  of  peace,  unless  when  permitted  by  treaty. 
In  the  second  place,  it  is  restricted  in  its  application  to  mcrehantmcn 
alone.  In  the  third  place,  the  right  of  search  should  be  exercised  in 
such  a  way  as  to  cause  the  least  possible  inconvenience  or  injury  to  neu- 


150  THE    RUSSO-JAPANESE    WAR 

struct! ve  (as  in  the  case  of  enemy  convoy),^"  to  the  at- 
tempted exercise  of  this  right  entails  condemnation  and  con- 
fiscation. 

trals.  In  other  words,  as  much  regard  should  be  paid  as  possible  to  the 
susceptibilities  and  interests  of  neutrals.  On  the  limitations  of  the  right 
of  visit  and  search,  see  especially  Woolsey,  §  208,  and  Wharton's  Dig. 
Ill,  §  325. 

"See  especially  the  cases  of  the  Maria  (1799),  Robinson,  340;  The 
Schooner  Nancy  (1812),  27  Court  of  Claims,  99;  and  The  Ship  Rose 
V.  U.  S.  (1901),  36  Court  of  Claims,  291 ;  also  the  dissenting  opinion  of 
Judge  Story  in  the  Nercide,  9  Cranch,  440;  and  the  opinion  {obiter 
dicta)  of  Justice  Johnson  in  the  case  of  the  Atalanta,  3  Wheat.  424.  The 
judges  do  not  always  distinguish  clearly  between  neutral  and  enemy 
convoy. 

In  view  of  the  suggestion  which  was  made  in  some  quarters  that 
Great  Britain  send  her  merchant  vessels  to  the  Far  East  under  convoy 
of  her  warships,  it  may  be  interesting  in  this  connection  to  insert  a 
brief  discussion  of  the  subject  of  convoy. 

It  is  still  a  matter  of  controversy  whether  neutral  merchantmen  under 
convoy  of  warships  of  their  own  nation  are  bound  to  suffer  visit  and 
search.  The  English  doctrine  is  best  set  forth  by  Lord  Stowell  in  the 
case  of  the  Maria,  above  cited.  American  jurists  have  generally  fol- 
lowed the  English  decisions.  In  the  case  of  the  Nancy,  it  was  held  that 
the  presence  of  an  enemy  convoy  is  constructive  resistance  and  a  denial 
of  the  right  of  search,  which  authorizes  seizure  and  consequent  con- 
demnation. See  also  the  dissenting  opinion  of  Judge  Story  in  the 
Nereide,  9  Cranch,  440.  English  and  American  writers  are  also  gener- 
ally agreed  that  "International  Law  does  not  prohibit  search  of  con- 
voyed vessels  nor  substitute  the  word  of  the  commander  for  actual 
search."  Dana's  Wheaton,  note  24:2,  p.  695.  Cf.  Hall,  §  272 ;  Lawrence, 
§  268;  Kent,  Com.,  Lect.  VII,  p.  154;  Wheaton,  Elem.,  §§  525  ff;  Philli- 
more.  III,  §  338.  Woolsey  appears  to  be  alone  in  expressing  the  opinion 
that  the  right  of  convoy  is  destined  to  become  a  part  of  International 
Law. 

Continental  publicists  are,  on  the  other  hand,  almost  unanimously  in 
favor  of  exemption  from  search  in  the  case  of  convoy  by  neutral  war- 
ships. See,  e.  g.,  Bluntschli,  §§  824  and  826;  Calvo,  V,  §§  2969  ff,  and 
the  authorities  there  cited;  Ortolan,  Dip.  de  la  Mer,  liv.  Ill,  ch.  7; 
Hautefeuille,  Droits  des  Neutres,  Tit.  XI,  ch.  3  and  Tit.  XII,  ch.  i ; 
Heffter,  §  170;  Perels,  Droit  Maritime,  §  56;  Bonfils,  Manuel,  §§  1597- 
1605;  Dupuis,  Le  Droit  de  la  Guerre  Maritime,  §§  244-250;  Kleen,  II, 
pp.  346-390. 

Nearly  all  the  maritime  Powers  of  Europe  have  instructed  their  naval 


THE    RIGHT    OF    VISIT    AND    SEARCH  I5I 

After  this  statement  of  the  law  and  the  facts  so  far  as 
these  can  be  ascertained,  we  must  agree  with  the  British 
Government  that  in  respect  to  the  Red  Sea  searches  and 
seizures  Russia  was  clearly  guilty  of  a  violation  of  "the  pub- 
lic law  of  Europe"  or  of  International  Law.  Either  she 
violated  a  long  line  of  solemn  international  compacts  by 
sending  commissioned  warships  through  the  Bosporus  and 
the  Dardanelles  in  the  guise  of  merchantmen,  or  she  violated 
one  of  the  most  cardinal  principles  of  International  Law  by 
permitting  or  authorizing  merchant  vessels  to  exercise  the 
strictly  belligerent  right  of  search  on  the  high  seas.  If,  e.  g., 
the  Pctcrburg  was  a  lawfully  commissioned  warship,  she  had 
a  perfect  right  to  visit  and  search  the  Malacca  on  the  Red 
Sea.  This  being  the  case,  if  it  be  true  that  the  captain  of  the 
latter  vessel  refused  to  show  the  manifest  of  his  cargo  upon 
being  requested  to  do  so,  the  captain  of  the  Pctcrburg  was 

commanders  to  respect  the  word  of  the  commander  of  a  convoy,  and 
many  of  them  have  incorporated  the  principle  of  freedom  from  visit  of 
ships  under  convoy  into  treaties.  Great  BriLiin.  on  the  other  hand,  still 
maintains  her  old  position  of  opposition  to  this  innovation  on  the  rights 
of  belligerents,  and  has  always  refused  to  rccoRni/.e  this  right,  even  in 
treaties. 

The  United  States  occupies  a  sort  of  intermediate  position  on  this 
question.  While  her  writers  and  jurists  have,  as  a  rule,  sanctioned  the 
English  doctrine,  the  Government  had  accepted  the  principle  of  free- 
dom from  search  under  convoy  in  no  less  than  thirteen  treaties,  mostly 
with  .American  States,  prior  to  1872.  (For  list,  sec  Hall,  p.  729.)  Ar- 
ticle 30  of  our  Naval  War  Code,  issued  in  1900,  declares  that  "convoys 
of  neutral  merchant  vessels,  under  escort  of  vessels  of  war  of  their 
own  state,  are  exempt  from  the  right  of  search,  upon  proper  assurances, 
based  upon  a  thorough  examination  from  the  commander  of  the  con- 
voy." If  the  support  or  example  of  the  British  Government  could  be  se- 
cured, the  principle  of  freedom  from  search  of  vessels  under  convoy  of 
sliips  of  war  of  their  own  nation  would,  with  certain  restrictions,  have 
.in  excellent  chance  of  becoming  incorporated  among  the  unquestioned 
rules  of  International  Law.  I-'or  the  present  such  a  pretension  must  be 
denied. 


152  THE    RUSSO-JAPANESE    WAR 

fully  justified  in  assuming  that  she  carried  contraband,  in 
seizing  her  as  a  prize  of  war,  and  in  bringing  her  through 
the  Suez  CanaP^  on  his  way  to  a  Russian  port.  If,  on  the 
other  hand,  as  seems  more  probable,"''*  the  Peterhiirg  was 
not  a  lawfully  commisioned  warship,  the  captain  of  the 
Malacca  had  a  perfect  right  to  refuse  to  show  his  manifest 
to  the  captain  of  what  might,  technically  speaking,  be  re- 
garded as  a  piratical  vessel.  In  any  case,  whether  the  Peter- 
burg  was  a  lawfully  commissioned  warship  or  not,  if,  as 
claimed  by  him,  the  captain  of  the  Malacca  did  not  refuse  to 
show  his  manifest  and  if  the  British  Government  stores  on 
board  the  Malacca  were  mistaken  for  contraband,  then  the 
seizure  was  a  serious  mistake  and  a  blunder  for  which  the 
Russian  Government  owed  ample  amends  and  reparation  to 
all  concerned.  ^^ 

^  The  fact  that  the  Suez  Canal  is  neutralized  by  an  international 
treaty  does  not,  as  some  have  supposed,  prevent  its  use  by  belligerents 
for  the  transportation  of  their  prizes.  See  Articles  IV  and  VI  of  the 
treaty,  which  is  printed  in  Holland's  Studies  in  International  Law, 
pp.  289  ff. 

"  It  is  difficult  to  see  how  and  where  the  Peterburg  obtained  her 
commission.  She  is  said  to  have  passed  through  the  Straits  as  a  mer- 
chantman on  July  7,  to  have  entered  the  Suez  Canal  on  July  9,  and  was 
busy  holding  up  neutral  vessels  on  July  11  or  12.  If  she  did  not  have  a 
bona  fide  commission  from  the  Russian  Government,  it  is  difficult  to 
avoid  the  conclusion  that,  from  a  purely  technical  point  of  view,  she 
was  guilty  of  an  act  of  piracy  when  she  captured  the  Malacca.  The 
OMcial  Messenger  of  St.  Petersburg  stated  on  August  2,  1904,  that  the 
Peterburg  and  Smolensk  had  received  a  special  commission,  the  term 
of  which  had  expired.  In  that  case  they  were  undoubtedly  warships, 
but  as  such  they  had  no  right  to  pass  through  the  Straits. 

It  has  been  suggested  that  the  Peterburg  and  Smolensk  were  pri- 
vateers ;  but  privateering  was  abolished  by  the  Declaration  of  Paris  in 
1856,  to  which  Russia  was  a  party,  and  it  is  not  alleged  that  she  pos- 
sessed letters  of  marque.  The  least  that  can  be  said  is  that  these  vessels 
were  guilty  of  acts  of  the  grossest  illegality. 

"  The  real  facts  will  probably  never  be  fully  known,  both  because  the 
dispute   was  largely  a   political  one   and  compromised  on   grounds  of 


I 


THE    RIGHT    OF    VISIT    AND    SEARCH  1 53 

Another  important  question  raised  by  these  seizures  is 
whether  the  right  of  search  apphes  to  neutral  mail  steamers. 
The  law  on  this  subject  is  by  no  means  as  clear  as  could  be 
wished.  The  best  rule  is  probably  that  laid  down  in  the 
United  States  Naval  War  Code  of  1900 :  "A  neutral  vessel 
carrying  hostile  dispatches,  when  sailing  as  a  dispatch  vessel 
practically  in  the  service  of  the  enemy,  is  liable  to  seizure. 
Mail  steamers  under  neutral  flags  carrying  such  dispatches 
in  the  regular  and  customary  manner,  either  as  a  part  of 
their  mail  in  their  mail  bags,  or  separately  as  a  matter  of 
accommodation  and  without  special  arrangement  or  remu- 
neration, are  not  liable  to  seizure,  and  should  not  be  detained, 
except  upon  clear  grounds  of  suspicion  of  a  violation  of  the 
laws  of  war  with  respect  to  contraband,  blockade,  or  un- 
neutral service,  in  which  case  the  mail  bags  must  be  for- 
warded with  seals  unbroken."'"' 

Hostile  dispatches,  military  orders,  and  the  like  (excepting 
diplomatic  communications,  which  are  privileged),'^  are,  of 
course,  subject  to  capture,  and  the  vessel  carrying  them, 
being  engaged  in  an  unneutral  service,  is  liable  to  confisca- 
tion.''* On  the  other  hand,  the  owners  and  captains  of  neu- 
tral mail  steamers,  by  virtue  of  the  nature  of  the  trust  im- 
posed upon  them,  can  not  be  suppo.sed  to  have  knowledge  of 
the  contents  of  all  the  various  communications  entrusted  to 

policy,  and  because  the  examination  of  tlie  cargo  of  the  .\falacca  was  a 
mere  matter  of  form. 

"Article  20  of  Stockton's  Code,  p.  406  of  Wilson  and  Tucker's  Inter- 
national Lau: 

"See  Lord  Stowcll's  decision  in  the  case  of  tlie  Caroline,  6  Robinson 
464. 

"The  cargo  is  also  confiscated  in  cases  where  the  "owners  arc  di- 
rectly involved  in  the  knowledge  and  conduct  of  the  guilty  transaction." 
Lord  Stowell  in  the  case  of  the  Atalanta,  6  Robinson  460. 


154  THE    RUSSO-JAPANESE    WAR 

their  charge.  In  recent  times  a  usage'*''  has  grown  up  in 
favor  of  exempting  packet-boats,  "not  merely  from  con- 
demnation, but  also  from  visit,  search,  and  capture."  This 
immunity  from  search  and  capture  has,  however,  been 
"granted  by  belHgerents  as  a  matter  of  grace  and  favor" 
rather  than  of  law,  and  is  by  no  means  absolute  or  unlim- 
ited."*' 

"  During  the  Mexican  War,  British  mail-steamers  were  permitted  to 
pass  in  and  out  of  Vera  Cruz.  During  our  Civil  War  the  British  Gov- 
ernment demanded  that  the  United  States  should  adopt  the  rule  that 
"all  mail  bags,  clearly  certified  as  such,  shall  be  exempt  from  seizure 
and  violation."  A  few  days  later  (October  31,  1862),  the  United  States 
Government  issued  instructions  to  the  eflfect  that  "public  mails  of  any 
friendly  or  neutral  Power,  duly  certified  or  authenticated  as  such,"  found 
on  board  captured  vessels,  "shall  not  be  searched  or  opened,  but  be  put, 
as  speedily  as  may  be  convenient,  on  the  way  to  their  designated  desti- 
nation. This  instruction,  however,  will  not  be  deemed  to  protect  simu- 
lated mails  verified  by  forged  certificates  or  counterfeited  seals."  See 
Dana's  Wheaton,  note  228,  pp.  659-60.  For  the  diplomatic  correspond- 
ence bearing  on  this  subject,  see  Bernard,  Neutrality,  pp.  319-23.  In 
1870,  France  "insisted  upon  the  condition  that  an  agent  of  the  neutral 
state  should  be  in  charge  of  the  mail-bags  and  declare  them  to  be  free 
from  noxious  communications."  Lawrence,  Principles,  p.  627.  At  the 
outbreak  of  the  Spanish-American  War  in  1898,  President  McKinley 
declared  that  "the  voyages  of  mail-steamers  are  not  to  be  interfered 
with  except  on  the  clearest  grounds  of  suspicion  of  a  violation  of  law 
in  respect  to  contraband  or  blockade."  But  the  Spanish  Government 
granted  no  such  concession  to  neutrals.  A  similar  indulgence  to  neutrals 
was  granted  by  Great  Britain  during  the  Boer  War  in  South  Africa. 

"On  the  other  hand,  many  modern  cases  may  be  mentioned  where  ruo 
indulgence,  or  a  very  limited  one,  was  given.  For  instance,  in  1808 
Spain  did  not  duplicate  the  American  concession,  and  in  1902  Great 
Britain  and  Germany  would  not  allow  neutral  mail-steamers  to  pass 
through  their  blockade  of  Venezuelan  ports,  but  stopped  them  instead, 
and,  after  overhauling  their  correspondence  and  detaining  what  seemed 
noxious,  sent  the  rest  ashore  in  boats  belonging  to  the  blockading 
squadron."  Lawrence,  War  and  Neutrality  (2d  ed.),  p.  191.  It  is,  how- 
ever, to  be  observed  that  this  is  a  case  of  blockade,  and  has  no  bearing 
on  the  subject  of  search  on  the  high  seas. 

**  Lawrence,  Principles,  p.  627.  Hall  (3d  ed.,  pp.  681  f)  is  of  the 
opinion  that  mail-steamers,  "although  at  present  secure  from  condem- 


THE    RIGHT    OF    V^ISIT    AND    SEARCH 


OD 


In  view  of  the  great  variety  in  practice  and  uncertainty  of 
tlie  rule,  it  is  highly  desirable  that  this  matter  of  the  right  of 
belligerent  search  of  neutral  mail  steamers  be  referred  for 
discussion  and  settlement  to  the  next  Hague  Peace  Con- 
ference, and  that,  in  case  of  a  dispute  arising  on  this  sub- 
ject which  can  not  be  settled  through  the  ordinary  chan- 
nels of  diplomacy,  it  be  referred  to  the  Hague  Tribunal 
for  an  authoritative  decision.  In  the  case  of  the  Prinz 
Hcinrich.  it  would  ai)pear  that  the  German  Government  was 
correct  in  claiming  that  the  Russians  had  no  right  to  remove 
mail  bags  in  a  mass  from  the  steamer.  The  Frinc  Hcinrich 
was,  however,  subject  to  visit  and  search  if  there  was  reason- 
able ground  for  suspicion  of  the  presence  of  noxious  dis- 
patches, in  which  case  the  mails  should  have  been  oj>ened  in 
the  presence  of  the  ship's  officers  and  the  objectionable  dis- 

nation,  are  no  more  exempted  than  any  other  private  ship  from  visit ; 
nor  does  their  own  innocence  protect  their  noxious  contents,  so  that 
their  pi^st-bags  may  be  seized  on  account  of  dispatches  believed  to  be 
within  them."  Hut  he  thinks  that  "the  secrecy  and  regularity  of  postal 
communication  is  now  so  necessary  to  the  intercourse  of  nations,  and 
the  interests  affected  by  every  detention  of  a  mail  are  so  great,  that  the 
practical  enforcement  of  belligerent  rights  would  soon  become  intoler- 
able to  neutrals.  ...  At  the  same  time,  it  is  impossible  to  overlook 
the  fact  that  no  national  guarantee  of  the  innocence  of  the  contents  of 
a  mail  can  really  be  afforded  by  a  neutral  Power."  He  concludes : 
"Probably  the  best  solution  of  the  difficulty  would  be  to  concede  im- 
munity as  a  general  rule  to  mail-bags,  upon  a  declaration  in  writing 
being  made  by  the  agent  of  the  neutral  government  on  board  that  no 
dispatches  are  being  carried  by  the  enemy,  but  to  permit  a  belligerent 
to  examine  the  bag  upon  reasonable  grounds  of  suspicion  being  specif- 
ically stated  in  writing."  Taylor  {Public  Intcrnalional  I.a:c,  9  668, 
pp.  750-51)  says:  "The  fact  that  the  neutral  carrier  is  jK-rmitted  to 
convey  certain  classes  of  mail  matter  does  not  deprive  the  iKlligcrent 
of  the  right  to  search  his  mail-bags  in  order  to  ascertain  wbrtber  or  no 
he  is  engaged  in  the  transport  of  noxious  dispatches."  Oppcnheim,  the 
most  recent  authority  on  Inlernalional  Law  (II,  t  411)  leaves  the  ques- 
tion open. 


156  THE    RUSSO-JAPANESE    WAR 

patches  removed.     The  mail  bags  should  then  have  been 
resealed  and  the  vessel  allowed  to  proceed  on  her  voyage. 

In  respect  to  the  question  raised  by  the  sinking  of  the 
Thea  and  the  Knight  Commander,  the  modern  rule  is  rea- 
sonably clear,  although  it  might  be  wished  that  some  of  the 
authorities'*^  had  made  a  clearer  distinction  between  the 
rights  of  neutrals  and  belligerents  in  this  matter.     It  is  that 

*'  The  authorities  are  not  fully  agreed  as  to  whether  a  neutral  prize 
can  ever  be  destroyed,  but  they  all  appear  to  limit  the  right,  if  it  ex- 
ists, to  cases  of  extreme  necessity.  Hall  (p.  741)  says  emphatically: 
"A  neutral  vessel  must  not  be  destroyed."  He  observes  that  "the  prin- 
ciple that  destruction  involves  compensation  was  laid  down  in  the  broad- 
est manner  by  Lord  Stowell,"  who  said  that  where  a  ship  is  neutral,  "the 
act  of  destruction  can  not  be  justified  to  the  neutral  owner  by  the  grav- 
est importance  of  such  an  act  to  the  public  service  of  the  captor's  own 
state;  to  the  neutral  it  can  only  be  justified  by  a  full  restitution  in 
value."   See  case  of  the  Felicity,  2  Dodson  383. 

Dana  (see  note  186  to  Wheaton,  p.  485)  is  of  the  opinion  that  "neces- 
sity will  excuse  the  captor  from  the  duty  of  sending  in  his  prize.  If 
the  prize  is  unseaworthy  for  a  voyage  to  the  proper  port,  or  where  there 
is  impending  danger  of  immediate  recapture  from  an  enemy's  vessel  in 
sight,  or  if  an  infectious  disease  is  on  board,  or  other  cause  of  a  con- 
trolling character,  the  law  of  nations  authorizes  a  destruction  or  aban- 
donment of  the  prize,  but  requires  all  possible  preservation  of  evidence, 
in  the  way  of  papers  and  persons  on  board.  And,  even  if  nothing  of 
pecuniary  value  is  saved,  it  is  the  right  and  duty  of  the  captor  to  pro- 
ceed for  adjudication  in  such  a  case,  for  its  own  protection  and  that  of 
his  Government,  and  for  the  satisfaction  of  neutrals."  Lawrence  {Prin- 
ciples, p.  406),  observes  that  "a  broad  line  should  be  drawn  between 
the  destruction  of  enemy  and  neutral  property," — a  distinction  which 
Dana  fails  to  make. 

Taylor  (§  557,  p.  573)  says  "it  is  generally  agreed  that  neutral 
prizes  should  never  be  burned."  He  does  not  seem  to  contemplate  the 
possibility  of  sinking  them.  Oppenheim  (§  431  of  Vol.  H),  as  usual, 
leaves  the  question  open. 

For  recent  Continental  opinions  on  the  destruction  of  prizes,  see  es- 
pecially Dupuis,  Le  Droit  de  la  Guerre  Maritime,  §§  261  flf ;  Kleen,  De 
la  Neuiralite,  pp.  529-534;  Bonfils,  Manuel,  §  1415;  Rivier,  Principes, 
II,  p.  350;  Perels,  Droit  Maritime,  p.  344;  De  Martens,  Traite,  III, 
p.  298.  The  Russian  publicist  De  Martens  enumerates  five  reasons 
which  appear  to  him  to  justify  the  sinking  of  an  enemy  or  neutral  ship. 


DESTRUCTION    OF    NEUTRAL    PRIZES  1 57 

neutral  vessels  or  neutral  cargoes  must  not  be  destroyed 
except  in  cases  of  extreme  necessity,  and  that,  in  case  of  such 
necessity,  the  ship's  pai)ers  must  he  preserved  for  purposes 
of  adjudication  and  indemnification  of  the  owners  of  th.e 
ship  and  cargo,  who  are  entitled  to  full  and  adeciuate  com- 
pensation for  their  losses.*-  Prizes  belonging  to  the 
enemy*^  may  be  destroyed  for  good  military  reasons,  but 
the  destruction  of  neutral  property  can  only  be  justified  on 
grounds  of  extreme  necessity,  since  it  involves  the  destruc- 
tion of  a  part  of  the  evidence  on  which  alone  the  capture  can 

"  In  two  letters  to  the  London  Times  for  August  6  and  August  30, 
1904,  Professor  Holland  thus  summarizes  the  three  leading  English  de- 
cisions on  this  subject:  "Such  action  (i.  e.,  the  destruction  of  a  neutral 
vessel  by  a  captor)  is  justifiable  only  in  cases  of  the  gravest  importance 
to  the  captors'  own  state,  after  securing  the  ship's  papers  and  subject 
to  the  right  of  the  neutral  owner  to  receive  full  compensation."  The  de- 
cisions referred  to  are  those  of  Lord  Stowell  in  the  cases  of  the  .ictcon 
(1815)  and  the  Felicity  (1819)  in  2  Dodson  48  and  381;  and  the  de- 
cision of  Dr.  Lushington  in  the  case  of  the  Lcucade  (1855),  2  Spinks 
228. 

**  Enemy  prizes  were  systematically  destroyed  during  the  American 
Revolution  and  the  War  of  181 2.  The  destruction  of  enemy  prizes  by 
the  Southern  Confederacy  has  generally  been  justified  on  the  ground 
that  there  were  no  non-blockaded  ports  to  which  they  could  be  taken. 
Neutrals  have  nearly  always,  and  enemies  have  generally,  been  exempt 
from  such  treatment.  In  1870  the  French  burned  two  German  vessels 
and  refused  indemnity  in  spite  of  the  fact  that  they  had  neutral  goods 
on  board.  Captain  Semmes,  of  Alabama  fame,  who  seems  to  have  turned 
his  cabin  into  a  prize  court,  was  in  the  habit  of  releasing  ships  whose 
cargoes  were  plainly  neutral,  on  ransom.  "But  in  a  lar^c  number  of 
the  cases  of  those  condemned  and  burned,  there  were  claims  for  the 
cargoes  as  neutral  property.  Captain  Semmes  seems  to  have  condemned 
the  cargo,  unless  there  was  positive  proof  of  its  neutrality.  This  prac- 
tice was  carried  on  by  him  for  four  years,  and  was  acquiesced  in  by 
neutral  nations,  who  permitted  their  ships  to  l>e  searched  and  their 
property  adjudicated  upon  by  these  commanders."  Snow's  Cases,  pp. 
519-20.  See  also  Scott's  Cases,  tiote  on  pp.  932-33.  Cf.  Bernard,  .V^m- 
trality,  p.  420. 


158  THE    RUSSO-JAPANESE    WAR 

be  justified  and  inasmuch  as  neutral  property  does  not  vest  in 
the  captors  until  after  it  has  been  adjudicated  upon. 

It  is  true  that  the  Russian  Prize  Regulations**  permit  the 
destruction  of  prizes  in  a  considerable  number  of  contin- 
gencies, vie,  unseaworthiness,  danger  of  recapture,  shortage 
of  coal,  difficulty  on  account  of  distance,  and  danger  to  the 
success  of  warlike  operations.  These  are  reasons  which 
might  perhaps  justify  the  destruction  of  enemy  prizes ;  but 
none  of  them  seem  sufficient  to  justify  the  destruction  of 
neutral  prizes,  with  the  possible  exception  of  unseaworthi- 
ness and  danger  of  recapture.  The  Russian  Regulations  are 
plainly  at  variance  with  the  rule  of  International  Law,  as 
stated  above. 

It  is  not  alleged  that  the  Knight  Commander  was  unsea- 

"  For  a  reprint  of  the  Russian  "Prize  Regulations,"  see  House  Doc. 
of  58th  Congress  (Foreign  Relations — 1904)  pp.  736-54.  On  the  de- 
struction of  prizes,  see  §  21  of  the  "Regulations"  and  §  40  of  the  "In- 
structions," pp.  738  and  752.  It  should  be  noted  that  the  "Project  for 
the  International  Regulation  of  Maritime  Prizes"  adopted  by  the  In- 
stitute of  International  Law  in  its  sessions  at  Turin,  Munich  and  Hei- 
delberg (1882-1887),  from  which  the  Russian  Prize  Regulations  appear 
to  be  taken,  merely  authorize  the  sinking  or  burning  of  enemy  ships. 
Tableau,  §  50,  pp.  205-06.  The  Russian  Regulations  omit  the  word 
"enemy"  before  "prizes."  Great  Britain  orders  the  release  of  a  neutral 
ship  in  case  of  unseaworthiness  or  if  a  prize  crew  can  not  be  spared. 
See  Admiralty  Manuel,  p.  86.  Our  own  Naval  War  Code  (Art.  50) 
fails  to  make  a  distinction  between  neutral  and  enemy  prizes.  This  is  a 
dangerous  error  or  omission  which  should  be  rectified  in  the  next  code. 

The  Japanese  follow  the  English  practice  of  releasing  neutral  vessels. 
The  destruction  of  captured  enemy  ships  is  apparently  permitted  if  the 
captor  thinks  that  it  is  impossible  to  send  the  captured  ship  or  its  cargo 
to  a  Japanese  prize  court  for  adjudication  or  if  there  are  an  insufficient 
number  of  sailors  for  this  purpose.  In  such  a  case  the  commander  is 
directed  to  conduct  the  vessel  to  the  port  nearest  the  place  of  capture 
and  "act  as  the  state  of  affairs  permits."  Article  20  of  the  Japanese 
Prize  Regulations  issued  during  the  Chino-Japanese  War  of  1894-5. 
See  M.  H.  Nagaoka  in  Rcvuc  Gcncralc  de  Droit  International  Public 
for  1894,  p.  504. 


DESTRUCTION    OF    NELTKAL    I'KIZES  I59 

worthy  or  in  imminent  danger  of  recapture,  or  even  that  it 
was  impossible  to  bring  her  into  port.  Still  less  was  there 
an  overpowering  or  extreme  necessity  ior  her  destruction. 
It  was  not  even  vital  to  Russia's  military  interests  that  that 
portion  of  her  cargo  which  consisted  of  railway  material  be 
destroyed  or  prevented  from  reaching  its  destination.  Under 
the  circumstances  we  must  pronounce  the  sinking  of  the 
Knight  Commander  a  gross  and  wanton  attack  upon  neutral 
rights  and  an  undoubted  violation  of  International  Ijiw. 


CHAPTER    VI 
Questions  Relating  to  Contraband  of  War 

The  Russo-Japanese  War  promises  to  mark  an  important 
epoch  in  the  history  of  neutral  rights  and  obhgations,  more 
particularly  in  definitely  establishing  the  rights  of  neutral 
commerce  in  respect  to  that  class  of  contraband  goods  char- 
acterized as  articles  ancipitis  iisus  (double  or  dual  use),  and 
in  extending  the  duties  of  neutral  governments  in  limiting 
the  use  of  neutral  ports  by  belligerent  armed  vessels.^ 

On  February  lo,  1904,  Japan  published  the  following  list 
of  contraband  articles,  which  are  divided  into  two  classes 
corresponding  to  the  English  and  American  division  into 
absolute  and  conditional  contraband  : 

1.  Military  weapons,  ammunition,  explosives  and  materials 
(including  lead,  salt-petre,  sulphur,  etc.),  and  machinery  for 
making  them,  cement,  uniforms  (naval  and  military),  mili- 
tary accoutrements,  armour-plates,  machinery  and  materials  for 
construction  or  equipment  of  ships  of  war,  and  all  other  goods 
which,  though  not  coming  under  this  list,  are  intended  solely 
for  use  in  war.  Above  mentioned  articles  ivill  be  regarded  as 
contraband  of  war  zvhen  passing  through  or  destined  for  ene- 
my's army,  nazy  or  territory. 

2.  Provisions,  drinks,  horses,  harness,  fodder,  vehicles,  coal, 
timber,  coins,  gold  and  silver  bullion  and  materials  for  con- 
struction of  telegraphs,  telephones  and  railways.  Above  men- 
tioned articles  zvill  be  regarded  as  contraband  of  zvar  zvhen 
destined  for  enemy's  army  or  nazy,  or  in  such  cases  zvhere,  be- 

*  This  latter  subject  will  be  discussed  in  the  succeeding  chapter. 


CONTRABAND    OF    WAR  l6l 

ing  goods  arrhnng  at  enemy's  territory,  there  is  reason  to  be- 
lieve from  the  circunustances  of  the  place  of  destination  that 
they  are  intended  for  use  of  the  naval  or  military  forces  of  the 
eneniy. ' 

It  will  be  seen  from  the  above  list  that  Japan  recognizes 
the  English  and  American  doctrine  of  Conditional  Contra- 
band, so  emphatically  but  (so  it  seems  to  the  writer)  vainly 
denied  or  denounced  by  many  Continental  publicists.' 

'The  italics  are  the  author's.  I*"or  this  hst  sec  London  Times  (weekly 
ed.)  for  February  26,  1904.  See  also  Bhic  Book  on  Russia.  No.  I  (1905), 
No.  I  and  inclosure  in  No.  10.  For  a  translation  differing  slightly  from 
the  above,  see  House  Doc.  of  58th  Congress  (For.  Rcl.,  1904).  P-  4i6. 
Cf.  list  published  in  Appendix  VII  of  Takahashi's  Cases  on  Inti-ma- 
tional  Law  during  the  Chino-Japancsc  War.  See  also  lists  found  in  the 
Manual  uf  Naval  Prize  Law  (p.  20),  drawn  up  by  Professor  Holland 
of  Oxford  in  1888  for  the  use  of  the  British  .Admiralty,  and  .Art.  19  of 
the  Instructions  to  Blockading  I'cssels  and  Cruisers,  issued  by  the  United 
States  Government  on  June  20,  1898.  (See  Appendix  III  in  Snow's 
International  Law.  The  list  given  in  the  Instructions  has  also  been  in- 
corporated into  Stockton's  Naval  War  Code.)  These  lists,  which  arc 
those  of  the  leading  modern  maritime  nations  of  the  world  who  have 
the  power  to  enforce  their  decrees,  may  be  considered  as  the  most  au- 
thoritative. One  looks  in  vain  for  agreement  or  consistency  in  treaties 
and  amongst  the  authorities  or  publicists;  but  it  is  certainly  fortunate 
that  the  leading  maritime  nations  of  the  world  (excepting  France  and 
Germany,  perhaps),  are  in  substantial  agreement  in  regard  to  the  ques- 
tion as  to  what  articles  may  be  dealt  with  as  contraband  of  war.  France 
can  scarcely  be  cited  any  longer  as  favoring  the  restriction  of  contraband 
to  arms  and  ammunition  since  her  attempt  to  make  rice  absolute  con- 
traband in  1885.  In  1870  Germany  remonstrated  strongly  with  the 
English  Government  for  permitting  the  export  of  coal  to  France.  Rus- 
sia protested  vigorously  against  the  inclusion  of  coal  among  the  articles 
contraband  of  war  during  the  West  African  Conference  in   18S4. 

'The  English  and  American  doctrine  of  conditional  contraband  is 
based  upon  the  Grotian  (livi>ion  of  commodities  into  three  classes : 
(i)  articles  of  direct  an«l  immediate  use  in  war,  such  as  arms  and  am- 
munition, which  arc  always  contraband  when  they  have  a  bcIliKcrcnt 
destination:  {2)  things  absolutely  useless  in  warfare,  such  as  millinery 
and  pianos,  which  are  never  contraband  under  any  circumstances;  (j) 
res  ancipitis  wJi«— things  of  double  or  dual  use,  1.  e.,  equally  useful  in 
war  or  [>cace.  such  as  coal,  horses,  provisions,  cloth,  etc.    It  is  to  this 


l62  THE    RUSSO-JAPANESE    WAR 

Russia,  on  the  other  hand,  pubHshed  on   February  28, 
1904,  an  extensive  list  of  contraband,  in  which  the  distinc- 

latter  class  that  the  English  and  American  doctrine  of  conditional  con- 
traband has  been  applied,  i.  e.,  they  are  only  to  be  considered  contraband, 
and,  therefore,  as  subject  to  preemption  or  confiscation,  when  destined 
to  a  place  besieged,  or  when  clearly  and  unquestionably  intended  for 
the  direct  and  immediate  use  of  the  army  or  navy  of  one  of  the  bellig- 
erents. In  any  case,  whether  in  the  case  of  absolute  or  conditional  con- 
traband, a  belligerent  destination,  either  immediate  or  ultimate,  is  essen- 
tial. It  need  not  necessarily  be  a  belligerent  port.  (See  The  Commcrcen, 
I  Wheaton  Rep.  382.)  For  leading  cases  on  the  doctrine  of  conditional 
or  occasional  contraband,  see  The  Staat  Embden  (1798),  i  C.  Robinson 
26  (masts)  ;  The  Endraught  (1798),  i  C.  Rob.  22  (timber)  ;  The  Jonge 
Margaretha  (1799),  i  C.  Rob.  189  (cheese)  ;  The  Jonge  Tobias  (1799), 
I  C.  Rob.  329  (tar)  ;  The  Sarah  Christina  (1799),  i  C.  Rob.  237,  241  (tar 
and  pitch)  ;  The  Ringende  Jacob  (1798),  3  C.  Rob.  86  (hemp  and  iron 
bars)  ;  The  Ne^tunus  (1800),  3  C.  Rob.  108  (sail  cloth)  ;  The  Edward 
(1801),  4  C.  Rob.  68  (wines)  ;  The  Commercen  (1816),  i  Wheaton  382; 
The  Ranger  (1805),  6  C.  Rob.  125  (provisions)  ;  and  The  Peterhoif 
(1866),  5  Wallace  28,  58. 

The  doctrine  of  conditional  contraband  is  strongly  opposed  or  de- 
nounced by  many  Continental  publicists.  Hautefeuille  {Droits  des  Neu- 
tres,  tit.  VIII,  sect.  II,  3),  who  relies  upon  an  imaginary  loi  primitive 
to  prove  his  case,  claims  that  contraband  is  confined  to  arms  and  muni- 
tions of  war,  or  to  articles  expressly  and  uniquely  destined  for  warlike 
use.  (See  also  his  Histoire  du  Droit  Maritime,  p.  433.)  Ortolan  {Dip. 
de  la  Mer,  II,  p.  190)  is  of  the  "opinion  of  those  who  think  that  the 
freedom  of  neutral  commerce  ought  to  furnish  the  general  principle  to 
which  only  such  restrictions  should  be  applied  as  are  an  immediate  and 
necessary  consequence  of  the  state  of  war  between  the  belligerents ;"  but 
he  is  willing,  by  way  of  exception,  to  make  certain  concessions  to  bellig- 
erents, "in  view  of  some  special  circumstances  affecting  their  military 
operations."  Kliiber  (§  288)  also  admits  the  existence  of  doubtful  cases 
which  must  be  governed  by  surrounding  circumstances.  Bluntschli 
(§  80s)  admits  that  such  objects  as  "clothing,  money,  horses,  timber  for 
naval  construction,  sail-cloth,  iron  plates,  engines,  coal,  and  merchant 
vessels"  (he  docs  not  include  food-stufifs  in  this  list)  may  "exception- 
ally be  regarded  as  contraband  of  war  expressly  sanctioned  by  treaty, 
or  if,  in  a  particular  case,  it  can  be  shown  that  they  are  destined  to  be 
used  in  an  existing  war,  and  that  they  are  carried  to  one  of  the  belliger- 
ents with  the  intention  of  rendering  him  aid."  (For  criticism  of  the 
doctrine  of  intent  of  the  owner  as  applied  to  contraband,  see  Kleen, 


CONTRABAND    OF    WAR  163 

tJuii  between  articles  absolutely  and  cunditiunally  contraband 
was  ignored.     This  list  was  as  follows  : 

1.  Small  arms  of  every  kind,  and  [,'nns.  mounted  or  in  sec- 
tions, as  well  as  armour-plates. 

2.  Ammunition  for  fire-arms,  such  as  projectiles,  shell-fuses, 

Contrcbande  dc  guerre,  pp.  37-43,  and  Thonicr,  Contrebandc  de  guerre, 
pp.  147-149.) 

Hffftcr  (§  160 )  admits  the  existence  of  articles  of  occasional  and  con- 
ditional contraband  "in  treaties  and  in  the  special  regulations  of  several 
countries,"  and  adds  that  "a  belligerent  can  only  interfere  with  them 
when  neutral  trade,  in  conveying  them  to  the  enemy,  aflfords  to  the  latter 
succour  of  a  manifestly  hostile  nature."  The  Russian  Dc  Martens 
(Traile,  III,  p.  351  ),  who  defines  contraband  as  "objects  which  a  neutral 
vessel  is  attempting  to  deliver  (chercc  a  (aire  entrer)  upon  the  territory 
of  one  of  the  belligerent  states'  (which  objects,  he  declares,  may  always 
be  seized),  admits  that  those  (objects)  which  are  not  of  direct  service 
in  war  may  also  be  seized  in  exceptional  cases  according  to  the  character 
and  destination  of  the  cargo  and,  in  general,  under  certain  determinate 
circumstances."  KIcen  (Contrebaude  de  guerre,  pp.  19  and  29)  would 
limit  the  seizure  and  confiscation  <if  articles  as  contraband  of  war  to 
"munitions  of  war  properly  so  called.  1.  <*..  objects  expressly  made  for 
war  or  immediately  and  specially  serviceable  for  warlike  use  in  their 
actual  state,"  and  to  "things  which  enter  into  the  composition  of  such 
objects,  if  it  be  sufficient  to  reunite  them  or  to  place  them  into  juxtapo- 
sition without  any  other  labor,  transformation  or  improvement."  Sec 
also  Kleen,  Lois  et  Usages  de  la  .\'eutraltti\  I.  pp.  370  flF. 

It  will  thus  be  seen  that  all  of  the  Continental  publicists  cited  above, 
with  the  exception  of  Ilautefeuille  and  Kleen  (the  latter  of  whom  seems 
to  be  the  only  thoroughly  logical  and  consistent  opponent  of  the  doctrmc 
of  conditional  contraband),  practically  cfmcede  the  principle  underlying 
the  British  and  American  contention,  fir.,  that  articles  of  dual  ur  double 
use  may,  under  certain  circumstances  {e.  g.,  if  destined  for  military  u»€), 
be  seized  and  coJifiscate«l  as  contraband  of  war.  Their  criticism  seems 
in  reality  directed  against  some  of  the  ways  in  which  the  floctrinc  has 
been  applied  by  Knglish  and  American  prize  courts  rather  than  against 
the  principle  or  doctrine  in  itself. 

It  should  be  noted  that  the  Institute  of  International  Law,  in  its  ses- 
sion at  Venice  in  iS</).  attemptet)  to  abolish  what  it  called  relative  or 
accidental  contraband  as  applied  to  articles  ancipilis  usus,  and  limited 
contraband  of  war  to  the  following  categories:  (i)  arms  of  every  kind; 
(j)  munitions  of  war  and  explosives;  (j)  military  material  such  as  ob- 


164  THE    RUSSO-JAPANESE    WAR 

bullets,  priming,  cartridges,  cartridge-cases,  powder,  salt-petre, 
sulphur. 

3.  Explosives  and  materials  for  causing  explosions,  such  as 
torpedoes,  dynamite,  pyroxyline,  various  explosive  substances, 
wire  conductors,  and  everything  used  to  explode  mines  and  tor- 
pedoes. 

4.  Artillery,  engineering,  and  camp  equipment,  such  as  gun 
carriages,  ammunition  wagons,  boxes  or  packages  of  cartridges, 
field  kitchens  and  forges,  instrument  wagons,  pontoons,  bridge 
trestles,  barbed  wire,  harness,  etc. 

5.  Articles  of  military  equipment  and  clothing,  such  as 
bandoliers,  cartridge-boxes,  knap-sacks,  straps,  cuirasses,  en- 
trenching tools,  drums,  pots  and  pans,  saddles,  harness,  com- 
pleted parts  of  military  uniforms,  tents,  etc. 

6.  Vessels  bound  for  an  enemy's  port,  even  if  under  a  neutral 
commercial  flag,  if  it  is  apparent  from  their  construction,  in- 
terior fittings,  and  other  indications  that  they  have  been  built 
for  warlike  purposes,  and  are  proceeding  to  an  enemy's  port  in 
order  to  be  sold  or  handed  over  to  the  enemy. 

7.  Boilers  and  every  kind  of  naval  machinery,  mounted  or 
unmounted. 

8.  Every  kind  of  fuel,  such  as  coal,  naphtha,  alcohol  and 
other  similar  materials. 

9.  Articles  and  material  for  the  installation  of  telegraphs, 
telephones,  or  for  the  construction  of  railroads. 

10.  Generally,  everything  intended  for  warfare  by  sea  or 
land,  as  well  as  rice,  provisions,  and  horses,  beasts  of  burden 
and  others,  which  may  be  used  for  a  warlike  purpose,  if  they 
are  transported  on  the  account  of,  or  are  destined  for,  the 
enemy.* 

jects  of  equipment,  uniforms,  gun-carriages,  etc.;  (4)  vessels  equipped 
for  war;  (5)  instruments  especially  made  for  the  immediate  manufac- 
ture of  munitions  of  war.  But  the  belligerent  is  permitted,  at  the  risk  of 
having  to  pay  indemnity,  to  preempt  or  sequester  objects  which,  taken 
on  their  way  to  an  enemy  port,  may  serve  equally  for  warlike  or  pacific 
usage.    See  Annuaire,  XVI,  p.  205. 

*  The  above  version,  which  diflfers  somewhat  from  that  published  in  the 
United  States,  is  the  one  given  by  T.  J.  Lawrence  in  his  recent  work, 


CONTRABAND    OF    WAR  1 65 

To  this  list  raw  cotton  was  added  by  Imperial  Order  on 
April  21.  1904. 

IVar  and  Neutrality  i>i  tlu-  Jar  Hast,  pp.  152-53.  It  may  be  found  both  in 
French  and  English  in  the  Blue  Hook  on  Russia,  No.  I  (1905),  inclosurc 
in  No.  3.  For  the  American  translation,  see  House  Doc.  of  58th  Con- 
gress, 3d  session  (Foreign  Kcl. — 1904),  p.  728. 

The  meaning  of  the  words  otlicrs  and  cnctny  in  section  lo  i><  ambigu- 
ous. As  Secretary  Hay  said  in  his  Note  of  August  30,  1904,  which  con- 
tains the  protest  of  the  United  States  against  the  decision  of  the  Russian 
prize  court  at  Vladivostok  in  the  case  of  the  Arabia,  to  Mr.  McCormick, 
our  ambassador  at  St.  Petersburg : 

"The  ambiguity  of  meaning  which  characterizes  the  language  of  this 
clause,  lending  itself  to  a  double  interpretation,  left  its  real  intendment 
doubtful.  The  vagueness  of  the  language,  used  in  so  important  a  matter, 
where  a  just  regard  for  the  rights  of  neutral  commerce  required  that  it 
should  be  clear  and  explicit,  could  not  fail  to  excite  inquiry  among 
American  shippers,  who,  left  in  doubt  as  to  the  significance  attributed 
by  His  Imperial  Majesty's  Government  to  the  word  'enemy' — uncertain 
as  to  whether  it  meant  'enemy  government  or  forces'  or  'enemy  ports  or 
territory' — have  been  compelled  to  refuse  the  shipment  of  goods  of  any 
character  to  Japanese  ports.  The  very  obscurity  of  the  terms  used 
seemed  to  contain  a  destructive  menace,  even  to  legitimate  .'\merican 
commerce. 

"In  the  interpretation  of  this  clause,  and  having  regard  to  the  tradi- 
tional attitude  of  His  Imperial  Majesty's  Government,  as  well  as  to  the 
established  rule  of  International  Law,  with  respect  to  goods  which  a 
belligerent  may  or  may  not  treat  as  contraband  of  war,  it  seemed  to  the 
Government  of  the  United  States  incredible  that  the  word  autres 
(others),  or  the  word  I'omcmi  (enemy),  could  be  intended  to  include  as 
contraband  of  war  foodstuffs,  fuel,  cotton  and  all  'other'  articles  destined 
to  Japanese  ports,  irrespective  of  the  question  whether  they  wore  in- 
tended for  the  support  of  a  non-combatant  population  or  for  the  use  of 
the  military  or  naval  forces.  In  its  circular  iA  Jime  10  last,  communi- 
catetl  by  you  to  the  Russian  Governnjcnt,  the  department  interpreted  the 
word  'eiumy*  in  a  mitigated  sense,  as  well  as  in  accordance  with  the  en- 
lightened and  humane  principles  of  International  I-aw,  and,  therefore,  it 
treated  the  wortl  'enemy,'  as  used  in  the  context,  as  meaning  'enemy 
government  or  forces.'  and  not  the  'enemy  ports  or  territory.' 

"Hut  if  a  benign  interpretation  was  placed  on  the  language  used,  it  is 
because  such  an  interpretation  was  due  to  the  Russian  Government.  l>r- 
twcen  whom  and  the  United  States  a  most  valued  and  imbroken  friend- 
ship has  always  existed,  and  it  was  no  less  due  to  the  commerce  <  f  the 
latter,  inasmuch  a*-  the  broad  intcrprctatioji  i-f  the  laiiw.inwc  v.-^rA  would 


l66  THE    RUSSO-JAPANESE    WAR 

In  the  publication  of  this  extensive  Hst  of  articles  (all  of 
which  were  regarded  as  absolutely  and  unconditionally  con- 
traband),°  and  still  more  by  her  subsequent  conduct.  Rus- 
sia not  only  showed  that  she  intended  to  ignore  the  doctrine 
of  Conditional  or  Occasional  Contraband,  but  she  included  in 
her  list  of  things  absolutely  contraband  many  articles  of 
ancipitis  nsiis,  such  as  coal,  rice,  horses,  provisions,  telegraph 

imply  a  total  inhibition  of  legitimate  commerce  between  Japan  and  the 
United  States,  which  it  would  be  impossible  for  the  latter  to  acqui- 
esce in. 

"Whatever  doubt  could  exist  as  to  the  meaning  of  the  Imperial  Order 
has  been  apparently  removed  by  the  inclosure  in  your  dispatch  of  the 
note  from  Count  Lamsdorflf,  stating  terselj'  and  simply  the  sentence  of 
the  prize  court.  The  communication  of  the  decision  was  made  in  un- 
qualified terms,  .and  the  department  is,  therefore,  constrained  to  take 
notice  of  the  principle  on  which  the  condemnation  is  based  and  which 
it  is  impossible  for  the  United  States  to  accept,  as  indicating  either  a 
principle  of  law  or  a  policy  which  a  belligerent  State  may  lawfully  en- 
force or  pursue  toward  the  United  States  as  a  neutral."  See  House  Doc. 
cited  above,  pp.  761-62. 

In  a  communication,  dated  March  7,  1904,  addressed  to  Sir  C.  Scott, 
then  the  British  Ambassador  at  St.  Petersburg,  Count  Lamsdorff  ex- 
plained that  section  10  meant  "that  the  Imperial  Government  (of  Rus- 
sia) reserve  to  themselves  the  right  to  supplement  the  list  of  contra- 
band articles  by  the  addition  of  others  if,  in  the  circumstances  of  the 
war,  they  should  judge  it  indispensable  to  forbid  the  conveyance  of  such 
articles  to  Japan  or  to  Japanese  armed  forces."  See  Blue  Book  on 
Russia,  op.  cit.,  inclosure  in  No.  7.  On  March  19,  1904,  the  Journal  of 
St.  Petersburg  published  the  following  additional  or  supplementary  in- 
structions to  commanders  of  Russian  warships  : 

"Under  the  name  of  foodstuffs,  to  which  allusion  is  made  in  section 
ID  of  this  Article,  must  be  included  among  the  number  of  articles  which 
may  be  used  for  foodstuffs  and  forage  for  the  Japanese  army,  all  kinds 
of  grain,  fish,  fish  products  of  various  kinds,  beans,  bean  oil  and  oil 
cakes. 

"On  the  list  of  articles  intended  for  warlike  purposes,  cither  on  land 
or  on  sea,  should  figure  machinery  and  parts  of  machinery  intended  for 
the  manufacture  of  cannon,  small  arms,  and  projectiles."  See  Blue 
Book  cited  above,  p.  7. 

''  This  was  expressly  so  stated  by  Count  Lamsdorff  in  the  communica- 
tion to  Sir  C.  Scott  above  referred  to.    See  Blue  Book,  op.  cit.,  p.  6. 


i 


i 


CONTRADAXD    OF    WAR  iGj 

and  railway  material,  etc.  These  had  always  iiithertu  been 
regarded  either  as  not  contraband  at  all,  or,  if  so,  as  subject 
to  preemption  or  confiscation  (jnly  in  certain  contingencies 
or  under  certain  circumstances,  c.  g.,  when  destined  to  a 
place  besieged,  or  when  clearly  and  obviously  intended  for. 
or  liable  to  fall  into  the  i>ossession  of,  the  army  or  navy 
of  the  enemy.  Russia  will  thus  be  seen  to  have  gone  farther 
than  any  belligerent  has  ever  gone,  at  least  since  the  time  of 
the  Napoleonic  wars,  in  the  direction  of  a  real  or  threatened 
attack  upon  the  rights  and  interests  of  neutral  commerce. 
"The  Russian  (Government,  which  more  than  a  century  ago 
was  the  foremost  chami)ion  of  the  freedom  of  neutral  com- 
merce, put  forth  for,  we  believe,  the  first  time  in  tlie  history 
of  civilized  warfare  the  amazing  pretension  that  all  such 
gocKls  should  be  considered  contraband,  regardless  of  des- 
tination or  circumstances."" 

The  i)ublication  of  this  list  drew  forth  some  severe  criti- 
cism from  the  English  and  American  Press,  and  what  ap- 
pears to  have  been  an  informal  or  semi-official  protest  from 
our  State  Department  at  Washington,"  but  it  was  not  before 
the  month  of  June,  1904,  that  the  American  and  British 
Governments  took  formal  action.  The  I'ritish  rio\crnmcnt 
api>ears  to  have  entered  its  first  formal  protest  against  Rus- 
sia's inclusion  of  rice  and  other  foo^lstufTs  in  her  list  of  con- 

•  From  .in  cditori.il  in  the  Now  York  Tribune  for  .\uKUSt  0.  I904- 
'"In  regard  to  the  Russi.in  dccl.iration  of  fcxidstuffs  a.s  contral)and. 
it  is  said  at  the  State  Departnieiit  that  the  <lestination  of  such  goods 
must  determine  their  character.  If  they  are  intended  fi>r  cither  anny 
they  are  contraband  and  subject  to  seizure.  If  they  arc  intende<I  for  the 
use  of  civilians,  except  in  the  case  of  besieged  towns,  they  must  not  be 
seized,  6r  if  seized,  they  must  be  paid  for."  See  New  York  Times  for 
March  i,  1904. 


l68  THE    RUSSO-JAPANESE    WAR 

traband  early  in  June.®  On  June  lo,  1904,  Secretary  Hay 
sent  the  following  Circular^  (which  we  reproduce  in  full  be- 
cause of  its  importance  and  because  it  serves  to  set  forth  the 
American  position  on  the  subject  of  contraband,  together 
with  the  main  arguments  with  which  this  view  has  been  sup- 
ported by  one  of  our  greatest  statesman)  to  American  am- 
bassadors in  Europe: 

Department  of  State, 
Washington,  D,  C,  June  10,  1904. 
To  the  Ambassadors  of  the  United  States  in  Europe : 

Gentlemen — It  appears  from  public  documents  that  coal,* 
naphtha,  alcohol  and  other  fuel  have  been  declared  contraband 
of  war  by  the  Russian  Government. 

These  articles  enter  into  general  consumption  in  the  arts  of 
peace,  to  which  they  are  vitally  necessary.  They  are  usually 
treated,  not  as  "absolutely  contraband  of  war,"  like  articles  that 
are  intended  primarily  for  military  purposes  in  time  of  war, 
such  as  ordnance,  arms,  ammunition,  etc.,  but  rather  as  "con- 
ditional contraband," — that  is  to  say,  articles  that  may  be  used 
for  or  converted  to  the  purposes  of  war  or  peace,  according  to 
circumstances.  They  may  rather  be  classed  with  provisions 
and  foodstuffs  of  ordinarily  innocent  use,  but  which  may  be- 
come absolutely  contraband  of  war  when  actually  and  especially 
destined  for  the  military  or  naval  forces  of  the  enemy. 

In  the  war  between  the  United  States  and  Spain  the  Navy 
Department,  General  Orders,  No.  492,  issued  June  20,  1898, 
declared,  in  Article  19,  as  follows :  "The  term  contraband  of 
war  comprehends  only  articles  having  a  belligerent  destination." 
Among  articles  absolutely  contraband  it  declared  ordnance, 
machine  guns  and  other  articles  of  military  or  naval  warfare. 
It  declared  as  conditional  contraband  "coal,  when  destined  for 

'  See  the  Marquess  of  Lansdowne  to  Sir  C.  Hardinge  in  Blue  Book 
on  Russia,  op.  cit.,  No.  16. 

"See  House  Doc,  op.  cit.,  pp.  3-4  and  pp.  730-32.  The  British  pro- 
test was  directed  mainly  against  the  inclusion  of  foodstufifs  as  contra- 
band, whereas  Secretary  Hay  confined  himself  mainly  to  coal  and  cotton. 


4 


CONTRABAND    OF    WAR  1 69 

a  naval  station,  a  port  of  call,  or  a  ship  or  ships  of  the  enemy." 
It  likewise  declared  provisions  to  be  conditionally  contraband 
"when  destined  for  the  enemy's  ship  or  ships,  or  for  a  place 
that  is  besieged." 

The  above  rules  as  to  articles  absolutely  or  conditionally  con- 
traband of  war  were  adopted  in  the  Naval  War  Code,  promul- 
gated by  the  Navy  Department,  June  27,  1900. 

While  it  appears  from  the  documents  mentioned  that  rice, 
foodstuffs,  horses,  beasts  of  burden,  and  other  animals  which 
may  be  used  in  time  of  war  are  declared  to  be  contraband  of 
war  only  when  they  arc  transported  for  account  of  or  in  desti- 
nation to  the  enemy,  yet  all  kinds  of  fuel,  such  as  coal,  naphtha, 
alcohol,  are  classified  along  with  arms,  ammunition  and  other 
articles  intended  for  warfare  on  land  or  sea. 

The  test  in  determining  whctluT  articles  ancipitis  usus  are 
contraband  of  war  is  their  destination  for  the  military  uses  of  a 
belligerent.  Mr.  Dana,  in  his  notes  to  Wheaton's  International 
Law,  says:  "The  chief  circumstance  of  inc|uiry  would  naturally 
be  the  jiort  of  destination.  If  that  is  a  naval  arsenal,  or  a  port 
in  which  vessels  of  war  are  usually  fitted  out,  or  in  which  a  fleet 
is  lying,  or  a  garrison  town,  or  a  place  from  which  a  military 
expedition  is  fitting  out,  the  presumption  of  military  use  would 
be  raised,  more  or  less  strongly,  according  to  circumstances." 

In  the  wars  of  1859  and  1870  coal  was  declared  by  France 
not  to  be  contraband.  During  the  latter  war  Great  Britain  held 
that  the  character  of  coal  depended  upon  its  destination,  and 
refused  to  permit  vessels  to  sail  with  it  to  the  French  fleet  in 
the  North  Sea.  Where  coal  or  other  fuel  is  shipped  to  a  port 
of  a  belligerent,  with  no  presumption  against  its  pacific  use.  to 
condemn  it  as  absnlutt-ly  contraband  would  seem  !<"»  be  an  ex- 
treme measure. 

Mr.  Mall,  Internatiomial  Law.  says:  i  Hirnig  the  \\  e>i  ,\fri- 
can  Conference  in  1HX4.  Russia  took  occasion  to  dissent  vigor- 
ously from  the  inclusion  of  coal  amongst  articles  of  contraband 
of  war,  and  declared  that  she  would  categorically  refuse  her 
consent  to  any  articles  in  any  treaty,  convention,  or  instru- 
ment whatever,  which  would  imply  its  recognition  as  such." 


I/O  THE    RUSSO-JAPANESE    WAR 

We  are  also  informed  that  it  is  intended  to  treat  raw  cotton 
as  contraband  of  war.  While  it  is  true  raw  cotton  could  be 
made  up  into  clothing  for  the  military  uses  of  a  belligerent,  a 
military  use  for  the  supply  of  an  army  or  garrison  might  pos- 
sibly be  made  of  foodstuffs  of  every  description  which  might 
be  shipped  from  neutral  ports  to  the  non-blockaded  ports  of  a 
belligerent.  The  principle  under  consideration  might,  there- 
fore, be  extended  so  as  to  apply  to  every  article  of  human  use 
which  might  be  declared  contraband  of  war  simply  because  it 
might  ultimately  become  in  any  degree  useful  to  a  belligerent 
for  military  purposes. 

Coal  and  other  fuel  and  cotton  are  employed  for  a  great 
many  innocent  purposes.  Many  nations  are  dependent  on  them 
for  the  conduct  of  inoffensive  industries,  and  no  sufficient  pre- 
sumption of  an  intended  warlike  use  seems  to  be  afforded  by 
the  mere  fact  of  their  destination  to  a  belligerent  port.  The 
recognition,  in  principle,  of  the  treatment  of  coal  and  other 
fuel  and  raw  cotton  as  absolutely  contraband  of  war  might 
ultimately  lead  to  a  total  inhibition  of  the  sale,  by  neutrals  to 
the  people  of  belligerent  states,  of  all  articles  which  could  be 
finally  converted  to  military  uses.  Such  an  extension  of  the 
principle  by  treating  coal  and  all  other  fuel  and  raw  cotton  as 
absolutely  contraband  of  war,  simply  because  they  are  shipped 
by  a  neutral  to  a  non-blockaded  port  of  a  belligerent,  would  not 
appear  to  be  in  accord  with  the  reasonable  and  lawful  rights 
of  a  neutral  commerce.   I  am,  gentlemen,  etc., 

John  Hay.^*' 

Fortunately  for  Russia  and  the  neutral  nations,  the  Rus- 
sians had  no  opportunity  of  making  a  practical  application 
of  their  extraordinary  views  on  the  subject  of  contraband 
until  the  months  of  June  and  July,  1904,^^  when  the  Vladi- 

^"In  the  comments  of  the  British  and  American  newspapers  (including 
those  of  the  political  opponents  of  the  Administration)  upon  the  position 
taken  by  Secretary  Hay  in  this  circular,  we  have  been  unable  to  detect 
a  single  dissenting  voice  amidst  the  general  chorus  of  approval. 

^  As   has   been    noted   in   the   previous   chapter,    the    neutral    colliers 


< 


COXTRABAXD    OF    WAR  I/I 

vostok  squadron  captured  several  neutral  vessels  in  the  Pa- 
cific, and  they  desisted  from  attempting  to  enforce  these 
views  a  few  months  later.  The  first  case  which  aroused  con- 
troversy was  that  of  the  British  collier  Allanton,  which  was 
captured  on  June  i6,  1904,  in  the  straits  of  Korea  on  her 
return  voyage  from  a  Japanese  port,  while  conveying  Jap- 
anese commercial  (anthracite)  coal  from  Japan  to  Singa- 
pore. One  of  the  grounds  on  which  the  vessel  was  con- 
demned by  the  Vladivostok  Prize  Court,  on  June  24,  was 
that  she  had  carried  contraband  (Welsh)  coal  to  Japan  on 
her  outward  voyage.  The  British  Government  refused  to 
interfere  at  the  time  on  the  ground  that,  inasmuch  as  an  ap- 
peal to  the  Admiralty  Council  at  St.  Petersburg  had  been 
allowed,  the  case  was  still  stib  judice.^'  The  Allanton  was 
subsequently  released  by  the  Admiralty  Council  at  St.  Pe- 
tersburg. 

If  the  facts  alleged  by  those  interested  in  the  fate  of  the 
Allanton  are  correct,  there  can  be  no  question  but  that  the 

seized  and  detained  as  prizes  in  the  Red  Sea  during  the  second  week 
of  the  war  were  released  in  response  to  an  order  of  the  Czar  on  the 
ground  that  these  captures  had  been  made  before  the  formal  declara- 
tion of  coal  as  contraband  of  war.  The  later  Red  Sea  seizures  were 
decided  on  other  grounds  than  that  of  their  alleged  carriage  of  contra- 
band. 

"  On  the  Allanton  case,  see  especially  a  letter  by  W.  R.  Rea,  the 
owner  of  the  Allanton,  in  the  London  Times  (weekly  ed.)  for  Sept.  2, 
1904,  and  the  letter  from  the  British  Foreign  Office  to  Mr.  Stanley 
Mitcalfe  in  the  London  Times  (weekly)  for  August  26,  1904.  Some  of 
the  grounds  given  by  the  Russians  for  the  condemnation  of  the  vessel 
were  very  trivial,  as,  e.  g.,  that  she  had  a  Japanese  cabin  boy  on  board, 
that  the  official  log-book  had  not  been  entered  up  properly,  etc.  A 
more  serious  charge  was  that  her  papers  were  irregular.  The  Allan- 
ton  was  released  by  the  Admiralty  Court  of  St.  Petersburg  on  October 
22,  1904.  For  a  very  full  and  comprehensive  review  of  this  case,  see 
Lawrence,  War  and  Neutrality,  pp.  221-247.  (^f-  Smith  and  Sibley, 
cited  below,  App.  F. 


iy2  THE    RUSSO-JAPANESE    WAR 

Russian  Prize  Court  at  Vladivostok  was  guilty  of  a  serious 
violation  of  the  law  of  contraband  in  condemning  the  vessel 
for  an  offense  supposed  to  have  been  committed  on  her  out- 
ward voyage.  As  Lord  Stowell  said  in  the  case  of  the 
Imina  (3  Rob.  168),  "the  articles  must  be  taken  in  delicto, 
in  the  actual  prosecution  of  the  voyage  to  an  enemy's  port.^^ 
Under  the  present  understanding  of  the  law  of  nations  you 
can  not  generally  take  the  proceeds  on  the  return  journey."^* 

"  This  is  the  general  rule,  but  there  are  exceptions.  In  1816  the 
cargo  of  the  Commercen,  a  Swedish  vessel,  was  condemned  by  the  Su- 
preme Court  of  the  United  States  because  it  was  intended  for  the 
British  fleet  lying  in  a  Spanish  port  during  the  War  of  1812.  The 
cases  to  which  the  doctrine  of  continuous  voyage  has  been  applied 
may  also  be  said  to  constitute  exceptions  to  this  rule.  In  any  case,  the 
real  or  ultimate  destination  must  be  a  hostile  one.  The  case  of  the 
Allanton  can  not  be  brought  under  any  of  these  heads.  Her  destination 
appears  to  have  been  really  as  well  as  nominally  neutral.  Smith  and 
Sibley  {International  Law  as  Interpreted  during  the  Russo-Japanese 
War,  pp.  334  ff.)  treat  the  decision  in  the  case  of  the  Allanton  as  "an 
extension  of  the  doctrine  of  continuous  voyage."  This,  like  much  else 
in  that  bulky  and  pretentious  volume,  is  absurd  as  well  as  erroneous. 

"  The  rule  is  different  in  the  case  of  an  attempted  breach  of  block- 
ade, in  which  case  the  outward  and  return  voyages  are  regarded  as 
parts  of  one  transaction  and  the  offence  clings  to  the  blockade  runner 
during  the  return  voyage.  See  Lord  Stowell's  decision  in  the  case  of 
the  Juffroiv  Maria  Shroeder,  3  Rob.  153.  But  in  the  case  of  contraband 
the  return  voyage  is  regarded  as  a  separate  and,  therefore,  innocent 
expedition.  In  the  case  of  the  Nancy  (3  Rob.  127),  Lord  Stowell  held 
that  the  return  voyage  will  not  be  regarded  as  a  separate  and  inno- 
cent expedition  if  the  "outward  and  homeward  voyages  are  but  parts 
of  one  transaction,  conducted  by  the  same  persons  and  planned  from 
the  beginning  as  one  adventure,  and  if  on  the  outward  voyage  contra- 
band goods  and  fraudulent  papers  are  carried."  Cited  by  Lawrence, 
Principles,  p.  616.  But,  as  Lawrence  says,  "it  is  somewhat  doubtful 
whether  this  view  would  be  acted  upon  at  the  present  time.  Conti- 
nental publicists  condemn  it  as  an  undue  extension  of  belligerent 
rights,  and  the  British  Admiralty  Manual  contents  itself  with  the  state- 
ment that  a  commander  should  detain  a  vessel  he  meets  on  her  return 
voyage  with  such  a  record  as  we  have  described  behind  her."  See 
Holland's  Manual,  pp.  23-24. 


A 


CONTRABAND    OF    WAR  1/3 

The  most  important  cases  bearing  on  the  subject  of  con- 
traband which  arose  during  the  war  were  those  of  the 
Knight  Commandcr,^'^  the  Arabia,  and  the  Calchas — all  of 
which  were  cases  of  prizes  captured  by  the  Vladivostok 
squadron  in  the  latter  part  of  July,  1904. 

The  Knight  Commander  was  a  British  steamer  with  a 

"  The  German  steamer  Thea,  which  was  sunk  by  the  Vladivostok 
fleet  at  about  the  same  time  as  the  Knight  Commander,  is  omitted  be- 
cause no  facts  have  come  to  light  which  would  make  a  discussion  of 
this  case  profitable  or  even  possible. 

No  question  appears  to  have  been  raised  regarding  the  legality  of 
the  capture  of  the  British  steamer  Cheltenham  early  in  July,  1904,  until 
the  appearance  of  Smith  and  Sibley's  work,  above  referred  to  (see 
Appendix  E,  pp.  435  ff.).  These  authors  urge  that  the  condemnation  of 
this  vessel,  together  with  its  cargo,  by  the  Russian  Prize  Court  at 
Vladivostok — a  decision  upheld  by  the  Supreme  Naval  Court  at  St. 
Petersburg — was  illegal  inasmuch  as  it  "involves  the  condemnation  of 
both  ship  and  cargo  for  conveying  conditional  contraband  to  a  port 
which  can  not  fairly  be  considered  belligerent."  The  main  part  of  the 
cargo  of  the  Cheltenham  consisted  of  railway  sleepers  and  construction 
timber  which  were  being  conveyed  from  Otarn,  Japan,  to  Fusan, 
Korea,  for  the  Seoul-Fusan  Railway,  then  being  used  for  military  pur- 
poses by  the  Japanese  Government.  The  Insurance  Correspondent  of 
the  London  Times  (see  weekly  edition  for  July  8,  1904,  p.  440)  says: 
"Unlike  the  case  of  the  Allanton,  I  am  afraid  there  can  be  no  disputing 
the  legitimacy  of  this  capture."  It  appears  that  this  was  the  fourth 
time  this  vessel  had  conveyed  railway  material  from  Japan  to  the  seat 
of  war.  In  a  suit  for  compensation  brought  against  her  owners  by 
19  of  the  crew  of  the  Cheltenham  (see  London  Times,  weekly,  for 
September  16,  1904,  p.  607),  the  attorney  for  the  defence  himself  ad- 
mitted that  his  "clients  were  trading  between  Japan  and  Korea  in 
what  was  declared  by  both  Russia  and  Japan  to  be  contraband  of  war." 
One  is  pleased  to  note  that  his  clients  lost  their  case.  See  London 
Times  for  September  2^,  p.  622.  And  yet  the  writers  cited  above  claim 
that  "the  two  indissoluble  tests  of  contraband,  hostile  quality  and  hos- 
tile destination,  seem  alike  absent  in  the  case  of  the  Cheltenham." 
This  vessel  was,  indeed,  guilty  of  a  much  more  serious  offence  against 
belligerent  rights  than  is  involved  in  the  carriage  of  contraband — 
she  was  engaged  in  unneutral  service  and  deserved  the  full  penalty  of 
the  law.  The  argument  that,  inasmuch  as  Russia  was  not  at  war  with 
Korea,  Fusan  was  therefore  a  neutral  port,  is  puerile. 


174  THE    RUSSO-JAPANESE    WAR 

general  cargo  (including  flour  and  railway  material)  from 
New  York  consigned  to  various  Eastern  ports,  viz.,  Manila, 
Shanghai  and  Yokohama.  She  was  sunk  by  the  Vladi- 
vostok fleet  and  afterward  condemned  by  a  Russian  prize 
court.  The  questions  involved  in  her  destruction  as  a  neu- 
tral prize  have  been  discussed  in  the  preceding  chapter. 
Our  conclusion  was  that  there  existed,  under  the  circum- 
stances, no  justification  for  her  destruction,  even  if  she  car- 
ried contraband.  The  British  Government  received  an  in- 
demnity for  the  destruction  of  the  vessel,  but  we  have  not 
heard  that  the  American  owners  of  the  cargo  were  in  any 
way  compensated  for  any  losses  they  may  have  sustained.  It 
would  seem  that  they  were  entitled  to  compensation  or  resti- 
tution even  in  the  case  of  such  portion  of  the  cargo  as  con- 
sisted of  contraband,  inasmuch  as  it  was  illegally  destroyed 
before  the  condemnation  by  a  properly  constituted  prize 
court.  ^^ 

The  cases  of  the  Arabia  and  Calchas  may  conveniently  be 
considered  in  connection  with  each  other,  inasmuch  as  the 
circumstanes  of  these  cases  are  practically  identical  and  the 

"  But  a  Renter's  telegram  to  London,  dated  August  9,  declared  that 
"no  proof  of  the  American  ownership  of  a  single  pound  of  the  Knight 
Commander's  cargo  had  been  produced  at  the  State  Department." 
Cited  by  Lawrence,  War  and  Neutrality,  p.  251.  The  United  States 
Government  entered  a  conditional  protest,  on  July  30,  1904,  against  the 
destruction  of  any  American  property  which  might  be  found  on  board 
the  vessel.  (See  House  Doc,  op.  cit.,  p.  734.)  In  view  of  the  subse- 
quent silence  of  our  State  Department,  it  may  be  assumed  that  the 
information  contained  in  Renter's  dispatch,  referred  to  above,  was 
correct. 

It  was  reported  at  the  trial  that  a  letter  book,  which  was  found  in 
the  captain's  cabin,  contained  copies  of  correspondence,  proving  that 
the  cargo  (probably  the  railway  material)  on  board  the  Knight  Com- 
mander was  really  destined  for  Chemulpo.  In  that  case,  its  confisca- 
tion as  contraband  of  war  by  a  prize  court  would  have  been  entirely 
justifiable.    See  London  Times  (weekly  ed.)  for  August  12,  1904. 


CONTRABAND    OF    WAR 


/D 


principle  governing  them  is  tlie  same.  The  Arabia  was  a 
German  vessel  with  a  cargo  composed  of  American  flour, 
machinery  and  railway  material  consigned  mainly  to  Hong 
Kong^^  and  Japanese  ports.  There  appears  to  have  been  no 
evidence  that  either  the  flour  or  the  railway  material  was  in- 
tended for  the  use  of  the  Japanese  Government.^*  The 
cargo  was  shipped  in  the  ordinary  course  of  trade  from 
Portland,  Oregon,  antl  was  in  part  consigned  to  commercial 

"  The  Arabia  appears,  at  the  time  of  her  seizure  on  July  22,  1904, 
to  have  been  on  her  way  to  the  neutral  port  of  Hong  Kong,  but  this 
fact  would  by  no  means  have  saved  her  cargo  from  condemnation  if  it 
could  have  been  shown  that  her  real  or  ultimate  destination  was  a  bel- 
ligerent one.  The  doctrine  of  continuous  voyage  has,  however,  no  ap- 
plicability to  this  case,  and  strangely  enough,  no  case  calling  for  its  ap- 
plication seems  to  have  arisen  during  the  war.  The  doctrine  is  un- 
doubtedly sound  in  principle,  although  liable  to  great  abuse  in  prac- 
tice. 

The  doctrine  of  continuous  voyage  was  first  applied  to  contraband 
by  a  French  prize  court  (in  the  case  of  the  J'rou  Houzcina)  during  the 
Crimean  War  in  1855,  but  it  did  not  attract  general  attention  until  the 
extension  and  publicity  given  to  the  doctrine  by  the  decisions  of  the 
Supreme  Court  of  the  United  States  (in  cases  of  the  Peterhoff,  etc.), 
at  the  close  of  the  Civil  War.  The  doctrine  in  question  was  approved 
by  the  Italian  Council  of  Prizes  in  1896  (in  the  case  of  the  Dochvyk) 
and  was  sanctioned  by  the  Institute  of  International  Law  at  its  session 
in  Venice  the  same  year.  The  attempt  of  England  to  enforce  the  doc- 
trine (in  the  cases  of  the  Biindcsrath,  etc.)  during  the  Boer  War  in 
1900  failed,  however,  owing  to  the  determined  opposition  of  Germany. 
On  "Continuous  Voyage  as  Applied  to  Contraband,"  see  especially 
Westlake  in  Latv  Quarterly  Revtezc,  XV,  pp.  24-32;  Woolsey  in  Out- 
look, Vol.  94,  pp.  167  flF ;  and  Baty,  Interuational  Lazv  in  South  Africa, 
ch.  I.  The  latter  is  an  extremely  able  attack  on  the  doctrine.  Mr. 
Baty,  at  least,  shows  that  it  is  liable  to  great  abuse.  The  doctrine  is 
generally  condemned  by  Continental  authorities. 

"It  was  claimed  at  the  time  that  the  railway  material,  although 
primarily  to  be  landed  at  a  Japanese  port,  was  to  he  transhipped 
thence  to  Chemulpo  in  Korea,  where  it  was  to  be  used  in  the  construc- 
tion of  a  railway  by  the  Japanese  Government ;  but  none  of  the  cargo 
appears  to  have  been  condemned  on  this  ground. 


176  THE    RUSSO-JAPANESE    WAR 

houses  in  Hong  Kong,  Yokohama  and  other  Chinese  and 
Japanese  ports. 

The  United  States  Government  at  once  asked  for  the  re- 
lease of  the  vessel  and  its  cargo/®  but  the  Russian  Prize 
Court  at  Vladivostok,  which  gave  its  decision  in  the  latter 
part  of  July,  1904,  condemned  such  portions  of  the  cargo 
(flour  and  railway  material)  of  the  Arabia  as  had  been  con- 
signed to  Japanese  ports.  The  vessel,  together  with  the  re- 
mainder of  the  cargo  (which  consisted  of  flour  consigned  to 
neutral  ports,  and  which  included  more  than  one-half  of  its 
bulk  and  weight)  was  released.^" 

The  Calchas  was  a  British  steamer,  largely,  if  not  entirely, 
laden  with  an  American  cargo  of  flour,  raw  cotton,  lumber, 
machinery,  etc.,^^  shipped  from  Tacoma  and  consigned  to 
various  Eastern  and  European  ports.  As  in  the  case  of  the 
Arabia,  it  was  claimed  by  the  owners  of  the  cargo^^  that  the 
commodities  shipped  to  Japanese  ports  were  consigned  to 
various  commercial  houses,  and  that  they  were  in  no  wise 
intended  for  the  consumption  of  the  Japanese  army  or  navy. 
The  decision  of  the  local  Russian  Prize  Court  at  Vladivos- 
tok^^ was  the  same  as  in  the  case  of  the  Arabia.     The  ves- 

^'  House  Doc,  cited  above,  p.  735. 

^  See  New  York  Times  for  August  4,  1904.  For  the  decision,  as  given 
by  Count  Lamsdorff  to  Mr.  McCormick,  see  House  Doc,  op.  cit.,  p.  756. 
The  cargo  was  condemned  on  the  ground  that  it  was  "bound  for  Jap- 
anese ports  and  addressed  to  various  commercial  houses  in  said  ports." 

'^  The  cotton  and  machinery  are  said  to  have  been  of  a  strictly  com- 
mercial character. 

°  See  letter  of  A.  Holt  and  Company  in  London  Times  (weekly)  for 
August  26,  1904. 

^  See  New  York  Times  for  September  15,  1904,  and  House  Doc, 
cited  above,  p.  765.  The  Calchas  was  captured  in  the  latter  part  of 
July  and  arrived  at  Vladivostok  on  August  8,  but  the  decision  of  the 
prize  court  was  not  rendered  before  September  13,  1904. 

The  Calchas  was,  however,  detained  at  Vladivostok  until  October  28, 


CONTRABAND    OF    WAR  I77 

sel,  together  with  that  part  of  the  cargo  consigned  to  neutral 
ports,  was  finally  released  after  a  detention  of  several 
months,  but  that  portion  of  the  cargo  which  had  been  con- 
signed to  Japanese  ports  was  condemned.  In  both  of  these 
cases  an  appeal  was  taken  to  the  higher  Admiralty  Court  at 
St.  Petersburg.  This  court  happily  reversed  the  decision  of 
the  lower  prize  court  in  the  case  of  the  Arabia  (in  December, 

i.  e.,  a  montli  and  a  half  after  she  should  have  been  released,  on  the 
plea  of  the  Russian  Crown  Advocate  that  she  had  carried  mail  matter 
from  the  United  States  to  Japan  containing  financial  information  of  spe- 
cial value  to  the  enemy  addressed  to  Japanese  officials.  This  fact  was 
not  made  public  until  October  9,  when  it  was  learned  that  several  of 
the  Pacific  mail  steamship  lines  had  notified  the  Postmaster-General  at 
Washington  that  they  would  thereafter  refuse  to  carry  United  States 
mail  addressed  to  Japan.  It  was  subsequently  learned  that  the  mail 
bags  of  the  Calchas  had  been  opened  by  Russian  officials  and  that  the 
contents  of  four  registered  mail  sacks  had  not  only  been  opened,  but  re- 
moved. The  bags  were  then  resealed  and  forwarded  to  Japan  after 
considerable  delay.  Among  the  letters  lost  are  said  to  have  been  some 
diplomatic  communications  (which  are  privileged)  from  the  Japanese 
Minister  at  Washington.  It  was  also  reported  on  October  14  that  a 
pouch  containing  private  or  domestic  mail  for  the  United  States  cruiser 
Cincinnati,  then  at  Nagasaki,  Japan,  had  been  opened,  subsequently  re- 
sealed,  and  then  sent  on  to  its  destination.  On  October  13  and  17,  1904, 
Secretary  Hay  instructed  our  representative  at  St.  Petersburg  to  bring 
these  instances  "of  what  appear  to  be  a  violation  of  the  Universal  Pos- 
tal Convention  to  the  attention  of  the  Russian  Government,  and  to  re- 
quest of  it  an  investigation  and  appropriate  action."  Mr.  Hay  added : 
"Any  interruption  of  regular  postal  communication  entails  such  serious 
inconvenience  to  various  interests  that,  apart  from  the  provisions  of 
treaty,  a  usage  has  grown  up  to  exempt  neutral  mails  from  search  or 
seizure."  House  Doc,  op  cit..  j).  772.  We  are  not  informed  as  to  the  ac- 
tion of  the  Russian  Government  in  the  matter. 

If  the  facts  were  correctly  stated,  there  can  be  no  doubt  that  the  Rus- 
sian authorities  were  guilty  of  a  clear  violation  of  the  International 
Postal  Union  Treaty,  as  well  as  of  International  Law.  However  far  the 
belligerent  right  of  search  of  neutral  mail  steamers  and  confiscation  of 
no.xious  mail  matter  may  extend,  it  can  not  possibly  be  made  to  justify 
the  detention  of  a  mail  steamer  under  such  circumstances.  The  law 
bearing  on  this  subject  has  already  been  discussed  in  the  preceding 
chapter. 


178  THE    RUSSO-JAPANESE    WAR 

1904)  ;  but  decided  to  confiscate  certain  portions  of  the  cargo 
of  the  Calchas,  to  inquire  into  the  destination  of  other  por- 
tions, and  to  release  the  vessel  and  the  remainder  of  the 
cargo.  The  seizure  itself  was  declared  to  have  been  justi- 
fied. This  court,  of  which  the  eminent  Russian  publicist  De 
Martens  was  a  member,  pronounced  cotton  contraband  of 
war.^* 

The  only  attempted  justification  of  the  decisions  of  the 
Prize  Court  at  Vladivostok  which  we  have  seen  is  the  follow- 
ing semi-ofiicial  statement  by  a  high  Russian  official  to  the 
Associated  Press : 

"Foodstuff  consigned  to  an  enemy's  port  in  sufficient  quantity 
to  create  the  presumption  that  it  is  intended  for  the  use  of  the 
Government's  military  or  naval  forces  is  prima  facie  contraband 
and  sufficient  to  warrant  holding  it  for  the  decision  of  a  prize 
court.  Even  if  consigned  to  private  firms,  the  burden  of  proof 
that  it  is  not  intended  for  the  Government  rests  upon  the  con- 
signor and  consignee.  If  it  can  be  proved  that  it  is  not  intended 
for  non-combatants  it  will  not  be  confiscated.  Small  consign- 
ments of  foodstuff  in  mixed  cargoes  will  be  considered  pre- 
sumptively to  be  regular  trade  shipments,  and  will  not  be  seized 
as  contraband."^ ^ 

On  August  10,  1904,  the  British  Government  addressed 
a  strongly-worded  protest^®  to  the  Russian  Government 
against  the  Russian  view  of  contraband,  as  also  against  the 
sinking  of  neutral  merchantmen  by  Russian  warships.  ^^  In 
respect  to  contraband.  Lord  Lansdowne  pointed  out  the  dis- 

"*  See  London  Times  (weekly  ed.)  for  May  20,  1905. 
"  See  the  New  York  Times  for  August  7,  1904. 

^°  This  protest  was  not  presented  to  the  Russian  Government  before 
August  16. 

"  See  Nos.  20  and  21  in  Blue  Book  on  Russia,  op.  cit. 


CONTRABAND    OF    WAR  1 79 

tinction  between  conditional  and  absolute  contraband,  and 
"with  regard  to  foodstuffs  consigned  to  a  belligerent's  port," 
he  maintained  that  "proof  is  necessary  that  the  goods  are  in- 
tended for  the  belligerent's  naval  or  military  forces  before 
they  can  be  considered  as  contraband."^* 

On  August  1 1,  and  again  on  August  30,  I904,**the  United 
States  Government  protested  vigorously  against  the  con- 
fiscation of  American  flour  and  railway  material  on  board 
the  Arabia.  In  his  famous  Note  of  August  30,  Secretary 
Hay.  after  remarking  that  the  "judgment  of  confiscation 
appears  to  be  founded  on  the  mere  fact  that  the  goods  in 
question  were  bound  for  Japanese  ports  and  addressed  to 
various  commercial  houses  in  said  ports,"  observed  that  "in 
view  of  its  well-known  attitude,  it  should  hardly  seem  nec- 
essary to  say  that  the  Government  of  the  United  States  is 
unable  to  admit  the  validity  of  the  judgment,  which  api>ears 
to  have  been  rendered  in  disregard  of  the  settled  law  of  na- 
tions in  respect  to  what  constitutes  contraband  of  war." 

After  calling  attention  to  the  ambiguity  of  the  Russian 
Imperial  Order  of  February  2S,  in  respect  to  the  words 
"enemy"  and  "others."""'  Mr.  Hay  thus  explained  the  atti- 
tude of  the  United  States  in  respect  to  telegraphic,  tele- 
phonic and  railway  material : 

"With  respect  to  articles  and  material   for  telegraphic  and 

"'Sec  London  Times  (weekly  cd. )  for  .August  26,  1904.  The  British 
position  in  respect  to  foodstuflfs  was  thus  stated  by  Lord  Salisbury  at 
the  beginning  of  the  Boer  War :  "Foodstuffs  with  a  hostile  destination 
can  be  considered  contraband  of  war  only  if  they  are  supplied  for  the 
enemy's  forces.  It  is  not  sufTicient  that  they  are  capable  of  being  so 
used;  it  must  be  shown  that  this  was,  in  fact,  their  destin.itinn  at  the 
time  of  seizure." 

"For  these  protests,  see  House  Doc,  of>.  cit..  pp.  756-57,  and  pp. 
760-63. 

"See  supra,  note  on  p.  165. 


l8o  THE    RUSSO-JAPANESE    WAR 

telephonic  installations,  unnecessary  hardship  is  imposed  by 
treating  them  all  as  contraband  of  war — even  those  articles 
which  are  evidently  and  unquestionably  intended  for  merely 
domestic  or  industrial  uses.  With  respect  to  railway  materials, 
the  judgment  of  the  court  appears  to  proceed  in  plain  violation 
of  the  terms  of  the  Imperial  order,  according  to  which  they 
are  to  be  deemed  to  be  contraband  of  war  only  if  intended  for 
the  construction  of  railways.  The  United  States  Government 
regrets  that  it  could  not  concede  that  telegraphic,  telephonic 
and  railway  materials  are  confiscable  simply  because  destined 
to  the  open  commercial  ports  of  a  belligerent." 

This  great  master  of  International  Law  and  Diplomacy 
then  proceeded  to  furnish  an  explanation  of  the  nature  of 
contraband,  which  we  may  accept  as  authoritative : 

"When  war  exists  between  powerful  states  it  is  vital  to  the 
legitimate  maritime  commerce  of  neutral  states  that  there  be 
no  relaxation  of  the  rule — no  deviation  from  the  criterion  for 
determining  what  constitutes  contraband  of  war,  lawfully  sub- 
ject to  belligerent  capture,  namely,  warlike  nature,  use  and 
destination.  Articles  which,  like  arms  and  ammunition,  are  by 
their  nature  of  self-evident  warlike  use,  are  contraband  of  war 
if  destined  to  enemy  territory ;  but  articles  which,  like  coal, 
cotton  and  provisions,  though  of  ordinarily  innocent,  are  capa- 
ble of  warlike  use,  are  not  subject  to  capture  and  confiscation 
unless  shown  by  evidence  to  be  actually  destined  for  the  mili- 
tary or  naval  forces  of  a  belligerent. 

"This  substantive  principle  of  the  law  of  nations  can  not  be 
overridden  by  a  technical  rule  of  the  prize  court  that  the 
owners  of  the  captured  cargo  must  prove  that  no  part  of  it 
may  eventually  come  to  the  hands  of  the  enemy  forces.  The 
proof  is  of  an  impossible  nature  and  it  can  not  be  admitted 
that  the  absence  of  proof,  in  its  nature  impossible  to  make, 
can  justify  the  seizure  and  condemnation.  If  it  were  other- 
wise, all  neutral  commerce  with  the  people  of  a  belligerent 
state  would  be  impossible ;  the  innocent  would  suffer  inevita- 
ble condemnation  with  the  guilty. 


CONTRABAND    OF    WAR  l8l 

"The  established  principle  of  discrimination  between  contra- 
band and  non-contraband  goods  admits  of  no  relaxation  or  re- 
finement. It  must  be  either  inflexibly  adhered  to  or  abandoned 
by  all  nations.  There  is  and  can  be  no  middle  ground.  The 
criterion  of  warlike  usefulness  and  destination  has  been  adopted 
by  the  common  consent  of  civilized  nations,  after  centuries  of 
struggle,  in  which  each  belligerent  made  indiscriminate  war- 
fare upon  all  commerce  of  all  neutral  states  with  the  people 
of  the  other  belligerent,  and  which  led  to  reprisals  as  the 
mildest  available  remedy." 

The  logical  results  of  the  new  Russian  doctrine  were  thus 
summarized  : 

"If  the  principle  which  appears  to  have  been  declared  by 
the  Vladivostok  Prize  Court  and  which  has  not  so  far  been 
disavowed  or  explained  by  his  Imperial  Majesty's  Government 
is  acquiesced  in,  it  means,  if  carried  into  full  execution,  the 
complete  destruction  of  all  neutral  commerce  with  the  non- 
combatant  population  of  Japan ;  it  obviates  the  necessity  of 
blockades ;  it  renders  meaningless  the  principle  of  the  declara- 
tion of  Paris  set  forth  in  the  Imperial  Order  of  February  29 
last,  that  a  blockade  in  order  to  be  obligatory  must  be  effective ; 
it  obliterates  all  distinction  between  commerce  in  contraband 
and  non-contraband  goods ;  and  is  in  effect  a  declaration  of 
war  against  commerce  of  every  description  between  the  people 
of  a  neutral  and  those  of  a  belligerent  state." 

And  he  closes  with  the  following  protest  on  the  part  of  the 
United  States : 

"You  will  express  to  Count  Lamsdorff  the  deep  regret  and 
grave  concern  with  which  the  Government  of  the  United  States 
has  received  his  unqualified  comiuunication  of  the  decision  of 
the  prize  court ;  you  will  make  earnest  protest  against  it  and 
say  that  the  Government  of  the  United  States  regrets  its  com- 
plete inability  to  recognize  the  principle  of  that  decision,  and 
still  less  to  acquiesce  in  it  as  a  policy."" 

"The  Hay  Note  or  protest  of  .August  30.  1004.  will  undoubtedly  take 


l82  THE    RUSSO-JAPANESE    WAR 

In  his  verbal  reply  of  September  i6  to  the  British  protest 
of  August  ID,  Count  Lamsdorff  informed  Sir  Charles  Har- 
dinge  that,  "owing  to  the  decision  of  a  Commission  which 
had  been  formed  under  the  Presidency  of  Professor  Martens 
to  study  the  question  of  contraband,  supplementary  instruc- 
tions^^ had  been  issued  to  the  Naval  Commanders  and  to 
the  Naval  Prize  Courts  defining  the  interpretation  of  section 
ID  of  Article  6  of  the  Russian  Rules,  which  the  Commission 
were  of  the  opinion  had  in  some  cases  been  misinterpreted. 
According  to  the  instructions  now  issued,  the  conditionally 
contraband  nature  of  articles  used  for  peaceful  or  warlike 
purposes,  according  to  circumstances  and  included  under 
section  lo  of  Article  6,  was  admitted,  but  the  Russian  Gov- 
ernment could  not  admit  that  articles  of  dual  use  when  ad- 
dressed to  private  individuals  in  the  enemy's  country  should 
necessarily  be  free  from  seizure  and  condemnation,  since 
provisions  and  such  articles  of  dual  use,  though  intended  for 
the  military  or  naval  forces  of  the  enemy,  would  obviously, 
under  such  circumstances,  be  addressed  to  private  indi- 
viduals and  not  to  the  government,  thus  defeating  the  ob- 
ject of  the  Regulations."^^  Count  Lamsdorff  assented  to 
the  proposition  made  by  the  British  ambassador  that  "in  the 
event  of  the  seizure  of  articles  of  a  conditionally  contraband 
nature  addressed  to  private  individuals,  the  burden  of  proof 
would  necessarily  rest  with  the  captor."^*" 

rank  as  one  of  the  best  and  most  authoritative  utterances  on  the  law  of 
contraband. 

'^  For  the  text  of  these  instructions,  as  amended  at  the  request  of  the 
British  Government,  see  Blue  Book,  cited  above,  No.  39  (inclosures). 

"  Blue  Book  on  Russia,  cited  above.  Sir  Charles  Hardinge  to  the 
Marquess  of  Lansdowne,  Nos.  29  and  30.  Cf.  Mr.  McCormick  to  Mr. 
Hay  on  September  21,  1904,  in  House  Doc,  op.  cit.,  pp.  767-68. 

**  Ibid.     The  italics  are  the  writer's.     But  Count  Lamsdorff  observed 


CONTRABAND    OF    WAR  1 83 

It  will  thus  be  seen  that  Russia  admitted  the  principle  of 
Conditional  Contraband,  but  restricted  its  application  to  the 
articles  enumerated  in  section  lo,  i.  c,  practically  to  rice  and 
other  provisions ;  for  horses  and  beasts  of  burden  were  ex-  I 
pressly  exempted  from  the  operation  of  the  rule,  /.  c,  they 
were  declared  to  be  absolutely  contraband.  In  view  of  this 
limitation,  Sir  Charles  Hardinge,  acting  upon  instructions 
from  the  British  Government,  made  further  representations 
to  the  Russian  Government  against  the  treatment  of  such 
articles  as  coal  and  raw  cotton  as  contraband.^"  but  was  un- 
able to  obtain  specific  assurances  on  these  points.^® 

Another  question  relating  to  the  law  of  contraband,  which 
can  hardly  be  said  to  be  more  than  academic  in  its  nature, 
arose  during  the  war.  The  Russians  appear  to  have  chal- 
lenged the  legality  or  legitimacy  of  trade  in  contraband  it- 
self. 

An  Associated  Press  dispatch  of  July  30,  1904,  stated 
that  Russia  had  filed  a  formal  protest  at  the  British  Foreign 
oflfice  against  the  British  shipments  of  contraband  of  war  to 

that  "it  would  be  equally  to  the  advantage  of  the  owner  of  the  articles 
in  question  to  disprove  the  charge  that  they  were  destined  for  the  mili- 
tary or  naval  forces  of  the  enemy." 

"See  Blue  Book,  op.  cit.,  Nos.  33,  37  (inclosure),  38  (inclosure). 
Cf.  official  letter  to  the  Liverpool  Chamber  of  Commerce  published  in 
the  London  Times  for  November  28.  1904. 

"The  British  ambassador  was  assured  by  Count  LamsdorfF  that  "the 
new  instructions  had  been  drawn  up  in  a  sense  to  avoid  future  difficul- 
ties with  neutral  Powers."  and  that  "ho  (Count  LamsdorflF)  was  confi- 
dent that,  by  a  liberal  construction,  they  might  be  made  to  cover  not 
only  the  articles  mentioned  in  section  10,  but  also  those  enumerated  in 
the  preceding  sections."  He  pointed  out  that  "even  in  cases  where  the 
decision  of  the  Court  of  Appeal  might  prove  unsatisfactory  to  a  foreign  / 
government,  there  was  always  arbitration  or  some  such  measure  to 
which  recourse  could  be  finally  had."  Sir  Charles  Hardinge  to  the 
Marquess  of  Lansdowiie,  September  21,  1904.  Blue  Book,  o/».  cil., 
No.  33- 


184  THE    RUSSO-JAPANESE    WAR 

Japan.  It  was  further  asserted  that  the  Russian  Government 
had  carefully  watched  the  manufacture  of  goods  intended 
for  the  use  of  the  Japanese  Government ;  that  as  soon  as  it 
was  established  that  such  goods  were  about  to  be  shipped  to 
a  hostile  destination,  the  facts  were  officially  communicated 
to  the  British  Government,  with  a  request  that  measures  be 
taken  to  stop  the  shipments ;  and  that  at  the  close  of  the  war 
Russia  proposed  to  present  a  bill  for  damages  to  the  British 
Government  as  an  offset  to  the  indemnities  claimed  by  the 
latter  for  the  seizure  of  the  British  steamers. ^^ 

Similar  protests  are  heard  in  nearly  every  war.^®  "When- 
ever a  trade  in  contraband  of  war  reaches  large  dimensions, 
the  state  whose  adversary  is  supplied  by  means  of  it  is  apt 
to  complain.  It  reproaches  the  government  of  the  offend- 
ing vendors  with  neglect  of  the  duties  of  neutrality,  and  ar- 
gues that  friendship  and  impartiality  alike  demand  the  stop- 
page of  a  traffic  which  supplies  its  foe  with  the  sinews  of 
war.  But  it  invariably  receives  in  reply  a  reminder  that  the 
practice  of  nations  imposes  no  such  obligation  upon  neutral 
powers.  .  .  .  The  utmost  that  can  be  expected  of  them 
in  the  matter  of  ordinary  business  transactions  is  that  they 
shall  warn  their  subjects  of  the  risks  run  by  carriers  of  con- 
traband merchandise,  and  give  notice  that  those  who  incur 
them  will  not  be  protected  by  the  force  or  the  influence  of 
the  state.""" 

"  N.  Y.  Times  for  July  30,  1904. 

^  E.  g.,  Bismarck  denounced  in  vigorous  language  the  conduct  of  the 
British  authorities  in  allowing  the  sale  by  English  firms  to  France  of 
arms  and  ammunition  in  1870,  and  the  United  States  complained  of  the 
refusal  of  the  British  Government  to  put  a  stop  to  the  trade  in  contra- 
band goods  between  Great  Britain  and  the  ports  of  the  Southern  Con- 
federacy during  the  Civil  War. 

^*  Lawrence,  Principles,  pp.  599-600.     It  may  be  doubted  whether  even 


CONTRABAND    OF    WAR  185 

The  American  position  on  this  question  was  tlius  stated 
by  Jefferson  in  1793,  when  Great  Britain  complained  of  tlie 
sale  in  the  United  States  of  arms  and  accoutrements  to  an 
agent  of  the  French  government:  "Our  citizens  have 
always  been  free  to  make,  vend  and  export  arms.  It  is  the 
constant  occupation  and  livelihood  of  some  of  them,  lo 
suppress  their  callings,  the  only  means,  perhaps,  of  their  sub- 
sistence, because  a  war  exists  in  foreign  and  distant  coun- 
tries, in  which  we  have  no  concern,  would  scarcely  be  ex- 

this  much  is  obligatory.  Only  a  few  of  the  Neutrality  Proclamations, 
e.  g.,  those  of  Great  Britain  and  the  United  States,  contain  such  warn- 
ing or  notice.  The  language  of  the  British  Proclamation  declaring  that 
any  one  engaging  in  the  carriage  of  contraband  "will  rightfully  incur 
and  be  justly  liable  to  hostile  capture  and  the  penalties  denounced  by  the 
law  of  nations  in  that  behalf,"  and  that  they  "will  in  no  wise  obtain  pro- 
tection from  us  against  such  capture  or  such  penalties,"  is  character- 
ized as  "misleading  rhetoric"  by  Professor  Holland  in  his  letter  to  the 
London  Times  for  November  29,  1904.  It  may  be  observed  that  the 
language  of  the  United  States  Proclamation  is  less  strong.  It  merely 
states  that  "while  all  persons  may  lawfully,  and  without  restriction  man- 
ufacture and  sell  within  the  United  States,  arms  and  ammunition  of 
war,  and  other  articles  ordinarily  known  as  'contraband  of  war,'  yet 
they  can  not  carry  such  articles  upon  the  high  seas  for  the  use  or  serv- 
ice of  either  belligerent  .  .  .  without  incurring  the  risk  of  hostile 
capture  and  the  penalties  denounced  by  the  law  of  nations  in  that  be- 
half." 

It  is  interesting  in  this  connection  to  note  that  the  Chinese  "Neu- 
trality Regulations"  (Art.  6)  actually  forbid  the  purchase  and  manufac- 
ture of  contraband  of  war  within  neutral  territory  for  the  use  of  or 
sale  to  the  belligerents.  The  "Royal  Proclamation"  relative  to  the  neu- 
trality of  Denmark  (Paragraph  6,  section  4)  forbids  Danish  subjects  to 
supply  belligerent  ships  with  "articles  that  are  considered  contraband," 
and  the  "Notice  to  Danish  Trade  antl  Shipping"  (.\rt.  3)  forbids  any 
owner  or  master  of  a  Danish  vessel  "to  employ  his  ship  in  the  trans- 
porting of  troops  or  contraband  of  war  for  any  of  the  belligerent  powers, 
or  to  let  or  charter  ships  which  arc  known  or  suppo-^cd  to  be  destined 
for  such  purpose."  The  Brazilian  Neutrality  Proclamation,  issued  in 
1898  (IV),  "absolutely"  prohibits  "the  exportation  of  material  of  war 
from  the  ports  of  Brazil  to  those  of  cither  of  the  belligerent  powers 
luider  the  Brazilian  flag,  or  that  of  any  other  nation." 


l86  THE    RUSSO-JAPANESE    WAR 

pected.  It  would  be  hard  in  principle  and  impossible  in  prac- 
tice. The  law  of  nations,  therefore,  respecting  the  rights  of 
those  at  peace,  does  not  require  from  them  such  an  internal 
derangement  in  their  occupations.  It  is  satisfied  with  the 
external  penalty  pronounced  in  the  President's  proclama- 
tion, that  of  confiscation  of  such  portion  of  these  arms  as 
shall  fall  into  the  hands  of  the  belligerent  powers  on  their 
way  to  the  ports  of  their  enemies.  To  this  penalty  our  citi- 
zens are  warned  that  they  will  be  abandoned."  A  little  later 
in  the  same  year  (1793)  Hamilton  also  declared  that  "the 
purchasing  within  and  exporting  from  the  United  States,  by 
way  of  merchandise,  articles  commonly  called  contraband  is 
free  to  all  the  parties  of  the  war,  and  is  not  to  be  interfered 
with."**' 

These  expressions  of  opinion  on  the  part  of  two  of  the 
greatest  American  statesmen  were  based  upon  the  dictum  of 
Vattel,"*^  to  the  eflfect  that  neutrals  are  under  no  obligations 
to  abandon  their  trade  in  order  that  they  may  avoid  furnish- 
ing either  belligerent  with  the  means  of  making  war.  They 
are  undoubtedly  a  part  of  the  theory  and  modern  practice  of 
International  Law  in  spite  of  the  opposition  of  a  small  band 

"  See  Wharton's  Digest,  III,  §  391,  for  these  and  other  expressions 
of  opinion  on  the  part  of  American  statesmen.  This  doctrine  has  also 
repeatedly  been  laid  down  by  the  U.  S.  Supreme  Court.  See,  e.  g.,  the 
cases  of  the  Cotnmcrccn,  i  Wheaton,  382,  and  Peterhoff,  5  Wallace,  28, 
58;  and  the  Santissima  Trinidad,  7  Wheaton,  340.  The  American  view 
was  upheld  by  Lord  Westbury  in  ex  parte  Chavasse  (1865),  34  L.  J.  N. 
S.  17.  In  1898  the  French  Government  stated  in  reference  to  the  case 
of  the  From,  that  "the  neutral  state  is  not  required  to  prevent  the  send- 
ing of  arms  and  ammunitions  by  its  subjects."  Cited  by  Professor  Hol- 
land in  his  letter  to  the  London  Times  for  November  29,  1904.  In 
Ruys  V.  Royal  Exchange  Assurance  Corporation  (1897)  a  contract  for 
insurance  on  contraband  goods  was  pronounced  valid.  See  London 
Times  for  June  i,  1897.    Cited  by  Smith  and  Sibley,  p.  404. 

^'Bk.  Ill,  Ch.  7,  §  III. 


I 


CONTRABAND    OF    WAR  rgj 

of  publicists.*"  As  a  leading  writer  says:  "No  powerful 
neutral  state  has  ever  interfered  to  stop  a  trade  in  arms  and 
ammunition  carried  on  by  its  subjects  with  agents  of  a  bel- 
ligerent government.  No  belligerent  has  ever  been  pre- 
vented by  moral  scruples  or  legal  prohibitions  from  buying 
war  material  in  a  neutral  market."*' 

To  place  such  restraints  uix)n  neutral  trade  would  be  not 
only  impracticable  in  the  highest  degree,  but  they  might,  un- 
der certain  circumstances,  make  the  burdens  of  neutrality 
greater  than  those  of  warfare,  and  tempt  neutrals  to  engage 
in  war  as  a  means  of  preserving  or  increasing  their  trade. 

"See  e.  g.,  Hautefeuille,  Droits  dcs  Nations  Ncutres,  Tit.  V'lII,  Sect. 
Ill ;  Phillimore,  III,  §  ccxxx ;  Kleen,  Lois  et  Usages  de  la  Neutralite, 
5  93.  PP-  37^^3-  Bluntschli  (§  766)  tries  to  draw  a  distinction  between 
large  {en  gross)  and  small  {en  detail)  exportation  of  arms  and  muni- 
tions of  war,  but  as  Lawrence  {Principles,  p.  603)  observes,  "the  diffi- 
culty of  drawing  a  line  between  a  small  trade  and  a  large  one  is  so  great 
as  to  amount  to  impossibility." 

"  Lawrence,  Principles,  p.  602. 


CHAPTER   VII 

The  Voyage  of  the  Baltic  Fleet,  and  the  Rights  and 

Privileges  of  Belligerent  Armed  Vessels 

IN  Neutral  Ports  and  Waters 

Next  to  the  questions  relating  to  contraband,  the  most 
important  issues  raised  during  the  Russo-Japanese  War 
from  the  standpoint  of  International  Law  were  those  con- 
nected with  the  rights  and  privileges  of  belligerent  armed 
ships  in  neutral  ports  and  waters. 

One  of  these  questions  was  raised  almost  at  the  very  be- 
ginning of  the  war  when  the  Russian  gunboat  Mandjur  re- 
mained in  the  neutral  harbor  of  Shanghai  (where  she  was 
found  lying  at  the  outbreak  of  hostilities)  in  defiance  of  the 
orders  issued  by  the  Chinese  authorities,  who,  acting  upon 
the  representations  of  the  Japanese  consul,  demanded  that 
she  leave  that  port  within  twenty- four  hours/ 

Japan  repeated  her  demands  at  Peking  and  is  even  said 
to  have  threatened  a  resort  to  force,  but  the  conduct  of  the 
Chinese  Government  seems  to  have  been  extremely  weak  and 
vacillating.      After    prolonged    negotiations    and    repeated 

^  The  reluctance  of  the  Mandjur  to  leave  Shanghai  appears  to  have 
been  due  to  the  fact  that  at  the  time  a  large  Japanese  cruiser  was  lying 
outside  the  harbor.  M.  De  Lessar,  the  Russian  minister  at  Peking, 
maintained,  however,  that  the  presence  of  the  Mandjur  in  Shanghai  was 
necessary  for  the  protection  of  the  Russian  Consulate  there.  This  ques- 
tion derived  additional  importance  from  the  fact  that  the  neutrality  of 
China  had  in  a  sense  been  guaranteed  by  the  Powers.  The  solution  of 
this  problem  was  anxiously  awaited  by  the  whole  world.  See  infra, 
chapter  9. 


THE    VOYAGE    OF    THE    BALTIC    FLEET  189 

agreements  to  disarm  on  the  part  of  tlie  Russian  authorities 
— agreements  which  do  not  appear  to  liave  been  effectively 
carried  out — the  Mandjur  was  finally  disarmed  and  disman- 
tled, and  the  important  parts  of  her  machinery  and  arma- 
ment were  placed  in  the  custody  of  the  Chinese  Government 
toward  the  end  of  March,  1904.* 

Another  case  of  the  abuse  of  the  hospitality  of  neutral 
ports  on  the  part  of  a  Russian  vessel  arose  in  February, 
1904.  The  Dmitri  Donskoi.  a  cruiser  belonging  to  the  Rus- 
sian Mediterranean  fleet,  obtained  coal  at  Port  Said  on  the 
plea  that  it  was  needed  to  enable  her  to  steam  to  Cadiz  on 
her  return  voyage  to  Russia.  But  the  coal  thus  obtained  for 
an  innocent  purpose  was  used  in  stopping  and  overhauling 
several  neutral  vessels  in  the  vicinity  of  the  Mediterranean 
entrance  to  the  Suez  Canal.  "It  is  quite  clear,"  .says  Law- 
rence,^ "that  Admiral  Wirenius  exceeded  his  rights  and  vio- 
lated the  neutrality  of  Egypt  in  a  gross  and  open  manner. 
No  proximate  acts  of  war  must  take  place  in  neutral  waters, 
and  they  must  not  be  used  as  a  base  of  operations." 

An  Associated  Press  dispatch  of  February  20,  1904.  stated 
that  friendly  communications  had  been  exchanged  between 
France  and  Japan  in  respect  to  the  stay  of  the  Russian  Med- 
iterrranean  squadron  under  the  command  of  Aflmiral 
Wirenius  at  Jibutil  in  French  Somaliland — a  stay  which  ex- 
ceeded the  twenty- four  hours  supposed  to  be  prescribed  by 
International  Law.  But  the  "Instructions"  of  the  French 
Minister  n\  Mnriiic  expressly  stated  that  "the  duration  of 
sojourn  in  I'rench  jx^rts  of  belligerents  unaccompanied  by  a 

'On  the  case  of  llio  Mandjur,  see  tlie  newspapers  from  February  19  to 
March  26,  1904.  See  especially  an  article  in  Collier's  Weekly  for 
April  9. 

'  H'ar  and  Neutrality  ( jnd  ed),  p.  116. 


190  THE    RUSSO-JAPANESE    WAR 

prize  has  not  been  limited  by  any  special  provision,"  and  the 
explanation  of  the  French  Government  was  said  to  have  been 
entirely  satisfactory  to  Japan.  It  appears  that  the  French 
authorities  at  that  port  also  permitted  the  Russian  vessels  to 
take  on  a  full  supply  of  coal.  The  British  Government,  on 
the  other  hand,  not  only  insisted  upon  the  enforcement  of 
the  twenty-four-hour  rule,  but,  in  accordance  with  the  terms 
of  its  Neutrality  Proclamation,  refused  to  supply  the  Rus- 
sian warships  with  more  coal  than  was  needed  to  carry  them 
to  the  nearest  home  port  or  some  nearer  named  neutral  des- 
tination. 

The  Japanese  also  repeatedly  complained  of  the  aid  and 
comfort  afforded  to  the  Russian  Baltic  Fleet  on  its  ill-fated 
voyage  to  the  Far  East  from  October,  1904,  to  May  1905. 
They  especially  complained  of  the  conduct  of  France  in  per- 
mitting the  use  of  her  territorial  waters  during  its  pro- 
longed stay  at  Nossi-Be  off  the  coast  of  Madgascar  in  Jan- 
uary and  February,  as  also  at  Kamranh  Bay  in  French 
Indo-China  in  April,  1905. 

The  voyage  of  the  Baltic  Fleet  is  of  particular  interest  and 
importance  to  students  of  International  Law  from  the  fact 
that  it  again  raised  the  question  as  to  the  right  and  propriety 
of  furnishing  coal  to  belligerent  warships  in  neutral  waters — 
a  question  which  had  been  raised  but  not  solved,  during  the 
American  Civil  War. 

After  repeated  delays,  the  main  portion  or  first  section  of 
this  ill-starred  fleet  finally  sailed  from  Libau  on  October  16, 
1904,  under  the  command  of  Admiral  Rojestvensky.  In 
order  to  reach  Vladivostok — its  ultimate  destination — the 
Russian  fleet  had  to  traverse  a  distance  of  over  17,000  miles 
by  a  route  on  which  Russia  had  no  coaling  stations  of  her 
own.     It  was  well  known  that  if  it  ever  hoped  to  succeed  in 


THE    VOYAGE    OF    THE    BALTIC    FLEET  I9I 

traversing  even  a  considerable  part  of  this  enormous  dis- 
tance, the  fleet  must  depend  upon  accompanying  colliers — a 
difficult  and  dangerous  expedient — or  upon  neutral  ports 
for  sufficient  supplies  of  coal. 

After  coaling  from  colliers  at  Cherbourg  in  France,  on 
October  24,  the  fleet  arrived  at  Vigo  in  Spain  on  October 
26.  Here  it  was  delayed  for  four  or  five  days  until  the  pre- 
liminaries for  the  reference  of  the  questions  growing  out  of 
the  North  Sea  Incident  to  an  international  tribunal  had  been 
arranged.*  At  Vigo  each  vessel  was  permitted  by  the  Spanish 
Government  to  take  on  400  tons  of  coal  and  the  fleet  was  al- 
lowed to  exceed  the  twenty-four-hour  rule  in  consequence  of 
the  international  complications  which  had  arisen, as  also  to  re- 
pair several  of  its  vessels.^ 

The  Russian  Admiral  then  proceeded  to  Tangier  on  Octo- 
ber 30  to  November  i,  where  he  was  apparently  permitted 
by  the  Moorish  authorities  to  take  on  a  full  supply  of  coal 
and  provisions.  At  Tangier  the  fleet  divided.  One  portion 
was  sent  via  the  Suez  Canal  under  the  command  of  Rear 
Admiral  Foelkersahm.  while  Admiral  Rojestvensky  him- 
self proceeded  southward  along  the  west  coast  of  Africa. 
No  secret  was  made  of  the  fact  that  the  two  divisions  of  the 
fleet  were  to  reunite  at  some  point  on  or  near  the  coast  of 
Madagascar. 

Rear  Admiral  Foelkersahm's  division,  after  coaling  at 
Algiers,  arrived  at  Port  Said  on  November  2.  and  passed 
through  the  Suez  Canal  on  November  24.     Our  information 

*  Sec  infra,  ch.  8. 

'The  Japanese  Minister  at  Madrid  is  said  to  have  made  representa- 
tions to  the  Spanish  Government  on  this  subject.  See  Chicago  Tribune 
for  December  3,  1904. 


192  THE    RUSSO-JAPANESE    WAR 

is  not  clear  on  the  point  as  to  whether  coal  was  furnished  to 
the  Russian  vessels  in  Egypt,  but  a  dispatch  from  Port  Said 
to  the  London  Times,  dated  November  12,  states  that  they 
would  be  permitted  "to  take  provisions  and  coal  sufficient 
to  enable  them  to  reach  the  next  port."® 

It  appears  that  Admiral  Rojestvensky  coaled  at  least 
twice  in  neutral  ports  during  his  voyage  around  the  Cape  of 
Good  Hope — at  Dakar  on  the  coast  of  West  French  Africa 
in  the  middle  of  November,  and  at  Swakopmund  in  German 
Southwest  Africa  early  in  December,  1904.  Both  divisions 
of  the  Baltic  Fleet  were  reunited  in  northern  Madagascar 
early  in  January,  1905. 

The  entire  fleet  remained  at  Nossi-Be,  a  small  island  off 
the  northern  coast  of  Madagascar  from  January  5  to  March 
16.  The  time  seems  to  have  been  spent  in  drilling  and  gun 
practice,  and  in  increasing  the  efficiency  of  the  ships.  The 
vessels  appear  to  have  been  anchored  outside  the  three- 
mile  limit,  but  they  were  in  close  communication  with  tlie 
shore  from  whence  they  obtained  abundant  supplies.  They 
coaled  from  colliers  which  accompanied  them  or  which  had 
been  sent  thither  from  European  ports. 

During  the  entire  period  of  the  voyage  there  seems  to 
have  been  a  growing  indignation  in  Japan  in  consequence 
of  the  facilities  afforded  the  Russian  fleet  for  coaling  in  neu- 
tral ports  and  waters,  especially  in  French  territory.  Com- 
plaints and  protests,  loud  and  frequent,  were  heard  on  all 
sides,  and  the  prolonged  stay  of  the  Russian  Admiral  at 

'This  contemplated  breach  of  neutrality  (?)  was  severely  condemned 
by  H.  W.  Wilson  in  an  article  entitled  "The  Voyage  of  the  Baltic 
Fleet,"  published  in  the  National  Reviczc  for  December,  1904.  Mr.  Wil- 
son claims  that  in  1898  "Egypt  declined  to  allow  Admiral  Camera's 
Spanish  fleet  to  ship  a  single  ton  of  fuel  within  Egyptian  waters."  See 
also  his  letter  to  the  I-ondon  Times  (weekly)  for  November  25.  1904. 


THE    VOYAGE    OF    THE    BALTIC    FLEET  I93 

Nossi-Be  led  to  tlie  charge  that  Madagascar  was  being  used 
as  a  base  of  operation  against  the  Japanese.  It  was  even 
alleged  that  the  relations  between  France  and  Japan  became 
considerably  strained  in  consequence  of  this  fact,  but  there 
appears  to  have  been  no  formal  protest  on  the  part  of  the 
Japanese  Government. 

The  entire  Russian  fleet  sailed  from  Nossi-Be  on  March 
16  and  is  believed  to  have  coaled  at  the  Chagos  islands  in 
the  Indian  Ocean.  It  was  sighted  off  Singapore  on  April  8 
and  arrived  at  Kamranh  Bay  in  French  Indo-China,  several 
hundred  miles  north  of  Saigon,  on  April  12,  where  it  re- 
mained for  ten  days.  A  considerable  number  of  the  vessels 
were  anchored  inside  the  harbor."  During  this  time  the 
fleet  was  freely  supplied  with  coal  and  provisions  by  Ger- 
man colliers  and  Russian  transports.  It  appears  that  at  the 
beginning  of  the  war  the  Russian  Government  had  pur- 
chased a  site  and  established  a  coal  dejxit  near  Saigon.  It 
was  apparently  from  this  source  that  the  Russian  fleet  at 
Kamranh  Bay  was  largely  supplied,'  although  it  was 
claimed  by  France  that  the  port  oflficials  at  Saigon  had  re- 
fused to  permit  the  Russian  transp>orts  in  that  harbor  to  take 
on  more  coal  than  was  necessary  to  carry  them  to  Vladi- 
vostok. 

These  rei>eated  violations  of  neutrality  in  French  waters 
raised  the  growing  excitement  of  the  Japanese  to  a  fever 
heat  and  at  last  led  to  representations  at  Paris  on  the  part 

'  Thi.s  is  according  to  ,1  statement  issuoil  by  the  J.ipancsc  Navy  De- 
partment.   See  ChicaRo  Tribune  for  April  23,  1905. 

'  See  the  cable  dispatch  of  April  jo,  published  on  May  8,  1905,  which 
the  French  authorities  at  SaiK«>n  refused  to  allow  to  l>c  transmitted  to 
the  New  York  Sun.  See  also  the  admissions  of  the  French  conces- 
sionaire, the  Marquis  de  Barthciemy,  in  the  London  Times  (weekly)  for 
May  \2.  1905. 


194  THE    RUSSO-JAPANESE    WAR 

of  the  Japanese  Government,  on  or  about  April  19.  Finally, 
yielding  to  the  request  of  the  French  authorities  backed  by 
instructions  from  Paris  and  the  express  orders  of  the  Czar, 
Admiral  Rojestvensky  left  Kamranh  Bay  on  April  2.2.  or 
26;^  but,  early  in  May,  there  was  another  outburst  of  popu- 
lar anger  and  excitement  in  Japan,  accompanied  by  threats 
of  war,  in  consequence  of  the  continued  use  of  the  coast  and 
waters  of  French  Indo-China,  more  particularly  of  the  Port 
d'Ayot  on  the  Bay  of  Van  Fong.  On  May  8  Admiral  Ro- 
jestvensky's  fleet  was  joined  by  Nebogatoff's  squadron  at 
some  point  off  the  Indo-China  coast,  but  the  almost  total 
destruction  of  the  entire  Russian  fleet  at  the  battle  of  Tsu- 
shima in  the  Korean  straits  on  May  27,  1905,  put  an  end  to 
its  erratic  career. 

Further  representations  appear  to  have  been  made  at 
Paris  by  the  Japanese  Government  in  consequence  of  the 
long  continued  use  of  the  coast  and  waters  of  French  Indo- 
China  by  the  Baltic  Fleet.  Japan  cited  eight  cases  of  viola- 
tion of  French  neutrality,  viz.,  the  visits  of  the  Russian  fleet 
to  Cherbourg,  Dakar,  Algiers,  Jibutil,  Majunga,  Nossi-Be, 
Kamranh  Bay,  and  Port  d'Ayot.  Japan's  statement  of  her 
case  ended  with  the  following  conclusions : 

"First — Without  impugning  the  good  faith  of  France,  the 
Japanese  Government  thinks  that  the  French  instructions  were 
inadequately  carried  out. 

"Second — If  satisfaction  has  been  given  the  Japanese  obser- 
vations after  the  event,  it  was  a  pity  that  more  active  watch- 

•  The  principal  vessels  of  the  fleet  left  Kamranh  Bay  on  April  22,  but 
they  are  reported  to  have  returned  two  days  afterwards  and  to  have  de- 
parted finally  with  the  rest  of  the  squadron  on  April  26.  On  April  27 
the  fleet  entered  the  Bay  of  Honkoye,  where  it  remained  until  May  9, 
1905.  See  Nagaoka  in  Revue  Generale  de  Droit  Int.  Pub.  for  1905, 
pp.  627-28. 


THE    VOYAGE    OF    THE    BALTIC    FLEET  I95 

fulness    was    not   practiced   before,   thereby    jjreventing   deeds 
that  Japan  considers  breaches  of  neutrahty. 

"Third — Jai)an  does  not  ip^nore  the  complexity  of  questions 
of  maritime  neutrality  or  I'Vancc's  predilection  for  her  own 
particular  rules ;  nevertheless,  she  considers  that  the  aid  as- 
sured Admiral  Rojestvensky,  owing  to  slovenly  surveillance, 
greatly  assisted  the  accomplishment  of  his  mission  and  his  ad- 
vent into  tiic  Chinese  seas."'" 

In  its  reply  to  the  Jai)ancsc  complaints,  the  French  Gov- 
ernment entered  a  general  denial  on  the  following  |)oints : 

I.  As  regards  coal,  the  Russian  tleet  never  used  the  privi- 
lege of  procuring  it  at  IVench  ports,  excepting  at  /Ugiers. 
where  two  torpedo  boats  took  in  fifty-seven  tons.  It  was  the 
English  anfl  (icrmans  who  stipjjlicd  coal,  and  Tokio  never  j)ro- 
tested  against  this  action  by  England  or  Germany. 

J.  As  regards  the  strategical  use  of  neutral  waters,  the 
I'rcnch  waters  never  were  the  scene  of  the  junction  of  the  va- 
rious Russian  squadrons.  Coaling  at  Cherl)ourg.  Dakar,  Jibutil, 
and  Nossi-He  took  place  outside  territorial  waters.  It  may  have 
happened  close  to  shore  and  there  may  have  been  intercourse 
between  the  fleet  and  the  shore,  but  not  by  means  of  war  ves- 
.scls  of  any  kind. 

3.  As  rcgarfls  repairs,  those  made  at  l'herlv"»urg  and  Ma- 
junga  were  not  in  excess  of  what  international  practice  jiermits. 

As  regards  the  presence  of  the  Russian  tleet  in  Indo- 
Chinese  waters,  the  French  Government  declared  Japan's 
complaints  ill  founded  and  laid  down  the  following  general 
propositions : 

I.  It  was  impossible  to  exercise  preventive  control  on  ac- 
count of  the  extent  of  the  coast  line  an<l  the  absence  of  tele- 

'*  Src  OiicaRO  Tnhunc  fi>r  M.iy  IJ.  1005.  This  dociimcnt  \v.is  first 
piil)Iislic(l  in  the  I'.Trii  Trmfs.  It  is  to  he  rcRrcUc*!  th.it  the  Yellow 
Hook  on  French  ohservance  of  ncntrality  during  the  Rti<iio-J.Tp.ine5e 
War.  announced  on  May  10.  1005.  appears  never  to  have  l>ren  pnhlishcd. 


196  THE    RUSSO-JAPANESE    WAR 

graphic  stations.   The  Government  did  what  it  could  and  would 
do  more  in  this  respect. 

2.  In  the  matter  of  coal  at  Saigon  and  Kamranh,  the  quan- 
tity bought  was  not  large.  Moreover,  the  coal  was  bought  of 
private  individuals.  Japan  made  no  protest  when  Cardiff  sold 
much  larger  stocks.  The  latest  instructions  sent  out  provide 
that  no  more  coal  is  to  be  furnished  than  is  necessary  to  take 
the  fleet  to  Vladivostok. 

3.  The  shores  of  Indo-China  have  not  served  as  a  base  of 
operations.  According  to  the  best  English  authorities,  a  con- 
tinuous occupation  is  required  to  constitute  a  base  of  operations. 

4.  The  case  of  the  Diana  is  proof  of  the  perfectly  correct 
conduct  of  the  French  Government.  The  essential  pieces  of  the 
guns  and  machinery  were  taken  out.  When  it  was  decided  to 
change  its  dock,  the  pieces  were  put  in  place  again,  but  imme- 
diately afterward  they  were  taken  out  once  more. 

The  French  Government  declared  the  Japanese  pyoint  of 
view  and  Japan's  remonstrances  unjustifiable  for  the  follow- 
ing reasons : 

1.  France's  impartiality  and  the  circumstances  of  Admiral 
Togo's  choice  of  a  field  in  which  to  give  battle  brought  it 
about  that  the  Russians  were  able  to  stay  in  Indo-Chinese 
waters  and  that  the  Japanese  were  unable  to  obtain  the  same 
advantage,  but  the  French  Government  declines  to  accept  any 
responsibility  for  such  a  situation.  If  Admiral  Togo  had  gone 
to  meet  the  Russians  at  the  entrance  of  the  Red  Sea,  the  situa- 
tion would  have  been  reversed  and  the  Japanese  would  have 
profited  by  the  same  advantages  which  the  Russians  have  en- 
joyed. 

2.  The  Japanese  did  in  the  Philippines  and  the  Dutch  In- 
dies what  they  accuse  the  Russians  of  doing.  That  the  Japa- 
nese squadron  cruised  for  two  months  in  the  waters  of  Singa- 
pore, Borneo,  and  Manila  is  beyond  a  doubt.  This  stay  in- 
volved frequent  relations  with  the  land  and  unavoidable  stays 
in  taking  on  provisions. 


I 


THE    VOYAGE    OF    THE    BALTIC    FLEET  1 97 

3.  riic  protest  addressed  to  I^'rance  alone  should  have  been 
addressed  to  the  other  fowcrs  as  well.  Before  reaching  the 
waters  of  Indo-China,  the  Russians  coasted  along  the  penin- 
sula of  Malacca,  where  they  were  joined  by  their  colliers  and 
provisioned  with  coal,  yet  no  protest  was  addressed  to  Lon- 
don. 

4.  The  I^'rench  reasons,  after  examination,  have  been  aj)- 
proved  by  the  British  Government.  Premier  IJalfour,  Lord 
Lansdowne  and  Parliament  have  found  the  measures  taken  by 
France  to  be  satisfactory. 

Finally,  the  five  following  conclusions  were  drawn  by  the 
French  Government : 

1.  That  in  law  it  has  completely  been  cleared  by  tht-  general 
and  notorious  character  of  its  rules  of  neutrality. 

2.  That  in  ccpiity,  in  spite  of  the  letter  of  its  rules,  it  had 
taken  certain  measures  calculated  to  secure-  the  preservation 
of  absolute  impartiality. 

3.  That  as  a  matter  of  fact  there  never  were  any  direct 
purchases  at  French  ports  except  at  Algiers,  and  that  purchases 
through  the  commercial  vessels  escorting  the  fleet  were  in- 
significant ;  that,  on  the  contrary,  the  whole  stf>ck  of  coal  for 
those  vessels  was  bought  in  Fngland  and  Germany  ;  that  tlu- 
watchfulness  of  the  French  authorities  in  Indo-China  was  as 
keen  as  the  distance  and  the  character  of  the  country  permit- 
ted. 

4.  That,  at  the  worst,  all  the  advantages  which  the  Rus- 
sians may  have  derived  from  their  use  of  I'rench  ports  and 
waters  that  would  have  been  assured  equally  to  the  Jafianese. 

5.  That,  in  .short,  the  French  Government  fulfilled  its  duty 
as  a  neutral  Power  so  far  as  its  means  allowed,  not  only  ac- 
cording to  the  letter,  but  according  to  the  spirit  of  the  law." 

ICven  admitting  that  the  above  lUxnimeiits  .nre  not  suffi- 

"  Krom  the  sntr«ni.-iry  of  this  doctinicnt  as  given  by  a  cahlc  di*>patch 
to  the  Chic.ngo  Tnhuiic  for  May  \2,  1905. 


198  THE    RUSSO-JAPANESE    WAR 

ciently  well-authenticated  and  that  that  portion  of  the  law 
of  neutrality  which  must  be  applied  to  them  is  somewhat 
vague  and  uncertain,  it  is  difficult  to  avoid  the  conclusion, 
made  on  the  basis  of  its  own  admissions,  that  the  French 
Government,  in  permitting  the  free  use  of  its  territorial  wa- 
ters at  Nossi-Be  and  still  more  at  Kamranh  Bay  and  Saigon, 
violated  the  spirit,  if  not  the  letter  of  International  Law.^^ 

The  history  of  the  voyage  of  the  Baltic  Fleet  to  the  Far 
East  furnishes  a  good  illustration  of  the  existing  defects  in 
the  present  law  of  neutrality,  and  especially  of  the  diver- 
gence of  international  practice  in  the  matter  of  furnishing 
coal  to  belligerent  warships  in  neutral  ports  and  waters.  It 
is  generally  said  that,  according  to  International  Law,  a  bel- 
ligerent armed  vessel  in  a  neutral  port  should  not  be  supplied 
with  coal  oftener  than  once  in  three  months,  and  then  only 
with  a  quantity  sufficient  to  take  her  to  the  nearest  port  of 
her  own  country  or  to  some  nearer  named  neutral  destina- 
tion. 

It  is  true  that  this  limitation  as  to  coal,  first  imposed  by 
Great  Britain  during  the  Civil  War,^^  now  regularly  appears 
in  the  neutrality  proclamations  of  Great  Britain,  the  United 
States,  and  a  certain  number  of  other  countries.^*     But  the 

'"  The  failure  to  prevent  the  estabUshment  of  a  coal  depot  at  Saigon 
by  Russia  was  a  most  flagrant  violation  of  the  letter  of  the  law  as  well 
as  of  its  spirit.  "It  is  a  breach  of  neutrality  for  a  neutral  to  permit  a 
permanent  depot  or  magazine  to  be  opened  on  its  shores,  on  which  a 
belligerent  may  depend  for  constant  supplies."  Wharton,  Commentaries, 
p.  360. 

"On  January  31,  1862.  These  regulations  were,  however,  frequently 
violated  in  British  ports,  at  least  in  behalf  of  vessels  belonging  to  the 
Southern  Confederacy.  The  Geneva  Board  of  Arbitration  of  1872  re- 
fused to  consider  the  mere  supplying  of  coal  to  warships  as  constituting 
a  base  of  naval  operations.  See  De  Lapradelle  in  Revue  Generate  de 
Droit  Int.  Pub.,  XI  (1904),  pp.  534  ff. 

"£.  g.,  in  those  of  Holland,  China.  Japan,  and  the  Scandinavian  coun- 


THE    VOYAGE    (JF    THE    BALTIC    FLEET  I99 

French  "Instructions"  of  February,  1904.  expressly  declare 
that  although  "a  belligerent  may  in  no  case  make  use  of  a 
French  port  for  a  military  purpose,"  a  belligerent  vessel  may 
be  supplied  with  "f(X)d,  commodities,  supplies  and  the 
means  of  making  repairs  {z>ivrcs,  dcnrccs,  approvisionc- 
mcnts,  ct  moycns  dc  reparations)  which  are  necessary  to  the 
sustenance  of  the  crew  and  the  safety  of  the  voyage.""' 

The  advanced  ground  taken  by  England  prior  to  the  de- 
parture of  the  Baltic  Fleet  in  this  matter  of  coal  supply  to 
belligerent  warships  in  British  ports  is  o{  great  interest  and 
importance.  At  the  beginning  of  the  war  the  British  Govern- 
ment contented  itself  with  the  customary  prohibitions  or 
limitations  noted  above,  but  the  Egyptian  Government  went 
a  step  further  in  the  "Notes"'"  issued  by  its  Minister  of  For- 
eign Affairs  on  February  10  and  u.  1904.  These  instruc- 
tions provided  that  in  Egypt  "no  warshij)  belonging  to 
either  of  the  belligerent  Powers  shall  be  furnished  with  coal 
without  a  written  authorization  obtained  from  the  proper 
port  authorities,  specifying  the  quantity  of  coal  which  may 
be  furnished.  Such  authorization  shall  be  granted  by  the 
port  authorities  only  after  a  written  statement  from  the 
ship's  commander  shall  have  been  obtained,  stating  the  des- 

tries.  See  Neutrality  Proclamations  and  Regulations  in  the  House  Poc- 
umctits  (Foreign  Relations  volumes)  for  1898  and  1904  and  in  Docu- 
ments published  by  the  Revue  Generate  de  Droit  Int.  Pub.  for  1904-  The 
Scandinavian  States  even  went  so  far  in  April.  1904,  as  to  close  abso- 
lutely (except  in  cases  of  distress)  certain  of  their  ports  .ind  waters  to 
belligerent  warships. 

"The  Neutrality  Proclamations  of  many  countries  (e.  g..  those  of 
Germany,  Auslro-Hungary,  Spain.  Mexico,  etc.)  merely  enjoin  the  ob- 
servance of  neutrality  without  further  specification. 

'*  F"or  the  French  text  of  these  "Notes,"  sec  the  Reiue  Ghifrale  de 
Droit  Int.  P.,  Vol.  XI  (1904),  pp.  lo-ii  and  17-18.  under  the  head  of 
Documents. 


200  THE    RUSSO-JAPANESE    WAR 

tination  of  his  vessel  and  the  quantity  of  coal  already  on 
board."^' 

On  August  12,  1904,  the  Governor  of  Malta,  acting,  pre- 
sumably, in  accordance  with  instructions  from  the  British 
Government,  took  a  step  far  in  advance  of  any  hitherto 
taken.  He  issued  a  proclamation,^®  which  declared:  (i) 
that  a  "belligerent  fleet  proceeding  either  to  the  seat  of  war 
or  to  any  position  or  positions  on  the  line  of  route  with  the 
object  of  intercepting  neutral  ships  on  suspicion  of  carrying 
contraband  of  war  shall  not  be  permitted  to  make  use  in  any 
way  of  any  port,  roadstead,  or  waters  subject  to  the  juris- 
diction of  His  Majesty  for  the  purpose  of  coaling  either  di- 
rectly from  the  shore  or  from  colliers  accompanying  such 
fleet,  whether  vessels  of  such  fleet  present  themselves  to  any 
such  port  or  roadstead  or  within  the  said  waters  at  the  same 
time  or  successively;"  and  (2)  that,  except  in  case  of  dis- 
tress at  sea,  "the  same  practice  shall  be  pursued  with  refer- 
ence to  single  belligerent  ships  of  war  proceeding  for  pur- 
pose of  belligerent  operations  as  above  defined." 

Attention  has  often  been  called  to  the  ever-increasing  im- 
portance of  coal  to  a  belligerent  warship  in  modern  warfare. 
As  Mr.  Lawrence  well  says  in  his  excellent  book  entitled 
"War  and  Neutrality  in  the  Far  East," — a  work  which 
seems  to  have  influenced  public  opinion  in  Great  Britain  and 
America  in  no  slight  degree  and  whose  argument  may  have 
greatly  influenced  the  action  of  the  British  Government : — 

"  Cf.  Lawrence,  War  and  Neutrality,  pp.  134-35.  These  rules  were 
evaded  by  the  Dmitri  Donskoi,  see  supra,  p.  189. 

"  For  the  full  text  of  this  interesting  and  important  proclamation,  see 
the  London  Times  (weekly)  for  August  26,  1904,  p.  555.  The  Times 
adds :  "Instructions  similar  to  those  embodied  in  the  above  proclama- 
tion have,  we  understand,  been  sent  to  the  Governors  of  other  British 
colonies  and  dependencies." 


THE    VOYAGE    OF    THE    BALTIC    FLEET  20I 

"Coal  has  become  much  more  important  for  warhke  pur- 
poses than  it  was  in  1862.  Without  it  a  ship-of-\var  is  a  use- 
less log.  It  is  as  essential  for  fighting  as  ammunition,  and 
much  more  essential  for  chasing  or  escaping.  Moreover,  the 
great  increase  in  size  or  speed,  or  botii,  of  modern  vessels 
causes  them  to  consume  it  in  much  greater  quantities  than 
before.  A  belligerent  which  can  obtain  full  supplies  of  it  in 
neutral  harbors  gains  thereby  an  enormous  advantage.  The 
neutral  may  be  perfectly  willing  to  grant  similar  supplies  to 
the  other  side,  but  its  wants  may  be  never  so  great,  and  con- 
sequently, the  assistance  given  to  it  may  never  be  so  effective. 
Besides,  it  is  of  the  essence  of  neutrality  that  no  aid  should 
be  given  to  the  belligerents,  and  this  is  by  no  means  the  same 
thing  as  giving  aid  to  both  equally."'* 

But  the  objection  may  be  urged  that  even  England  re- 
gards coal  as  an  article  ancif^itis  usus.  and  not  per  se  contra- 
band of  war.  I  lt)w  can  the  British  Government  consistently 
permit  its  subjects  to  furnish  coal  to  the  enemy  in  the  ordi- 
nary way  of  trade  and  at  the  .same  time  forbid  its  supply  to 
belligerent  vessels  in  neutral  ports  and  waters?  Here  again 
Lawrence  supplies  us  with  what  seems  to  be  a  conclusive 
argument.  He  calls  attention  to  the  fact  that  if  "coal  is  an 
article  of  the  first  necessity  in  warfare."  it  is  "equally  nec- 
essary for  peaceful  purposes."  "An  article  of  commerce 
may  be  so  essential   for  hostile  purpo.scs  that   no  warship 

'•  L.iwrcncc,  of>.  cil..  |>.  IJ6.  Sec  Dc  Lapr.idcllc  in  AV;i4«"  Gfn^ralf  de 
Droit  Int.  Pub.  for  IQ04  (t.  XI),  pp.  551  flf.  for  plausible  hut  unconvinc- 
ing .irRumcnts  against  L.T\vrcncc's  view.  The  main  source  of  the  Conti- 
nental opposition  to  the  limitation  or  prohibition  of  the  supply  of  coal 
to  belligerent  \var>-liips  in  neutral  p<irts  and  water-;  lies,  of  course,  in  the 
fact  that  most  of  these  states  .ire  poorly  supplied  with  coaling-stations 
of  their  own  as  compared  with  Great  Hritain.  This  is  also  the  case 
with  the  United  States,  but  arguments  based  on  considerations  ■'•'  "i- 
tional  self-interest  have  no  legal  value  or  validity. 


202  THE    RUSSO-JAPANESE    WAR 

ought  to  be  supplied  with  it  in  neutral  waters,  and  yet  so 
essential  for  the  ordinary  purposes  of  civil  life  that  it  ought 
not  to  be  prevented  from  reaching  the  peaceful  inhabitants 
of  belligerent  countries.  The  two  propositions  are  not  in- 
consistent."^" 

These  arguments  derive  additional  weight  and  value  from 
a  study  of  the  voyage  of  the  Baltic  Fleet  as  outlined  above. 
Without  the  facilities  for  coal  afforded  it  in  neutral  ports 
and  waters  (mainly  French),  it  could  not  possibly  have  suc- 
ceeded in  circumnavigating  the  greater  part  of  Europe, 
Asia,  and  Africa,  with  the  avowed  purpose  of  attacking  the 
Japanese  fleet.  Not  only  have  the  French  "Instructions" 
proven  lamentably  insufficient  for  the  purpose  of  maintain- 
ing a  real  neutrality,  but  even  a  strict  observance  of  the  Brit- 
ish and  American  rules  would  not  have  prevented  that  fleet 
from  advancing  from  one  neutral  port  to  another  by  means 
of  coal  obtained  at  a  previous  port,  or  from  using  neutral 
coasts  and  waters  as  bases  of  supply,  or  as  channels  of  trans- 
portation, even  though  the  fleet  itself  had  remained  outside 
the  three-mile  limit.  Nothing  short  of  the  total  prohibitions 
contained  in  the  proclamation  of  the  Governor  of  Malta 
would  seem  to  be  sufficient  for  the  maintenance  of  a  strict 
or  real  neutrality. 

For,  as  pointed  out  by  HalP^  over  twenty  years  ago  in  a 
remarkable  passage  which  has  proven  prophetic:  "If  a  bel- 
ligerent vessel,  belonging  to  a  nation  having  no  colonies, 
carries  on  hostilities  in  the  Pacific  by  provisioning  in  a  neu- 
tral port,  and  by  returning  again  and  again  to  it,  or  to  other 
similar  ports,  without  ever  revisiting  her  own,  the  neutral 
country  practically  becomes  the  seat  of  magazines  of  stores 

°'' Lawrence,  op.  cit.,  pp.  162  and  161. 
'^'^  Treatise  (3d  ed.),  §  221,  p.  607. 


Tin-:    VOYAGE    OF    TUE    BALTIC    FLEET  2O3 

which.  th()Ui,Hi  nut  warlike,  are  necessary  to  the  prolonga- 
tion of  the  hostilities  waged  by  the  vessel.  She  obtains  as 
solid  an  advantage  as  Russia  in  a  war  with  France  would 
derive  from  being  allowed  to  march  her  troops  across  Ger- 
many. She  is  enabled  to  reach  her  enemy  at  a  spot  which 
would  otherwise  be  unattainable." 

The  present  vagueness  of  the  law  or  principle  governing 
this  matter  of  coal  supply  to  belligerent  armed  vessels  in 
neutral  ports  is  perhaps  best  expressed  by  Professor  T.  E. 
Holland  in  a  letter  to  the  London  Timcs:''^  "It  is  admitted 
on  all  hands  that  a  neutral  Power  is  bound  not  to  permit  the 
'asylum'  which  she  may  grant  to  ships  of  war  to  be  so 
abused  as  to  render  her  waters  a  'base  of  operations'  for  the 
belligerent  to  which  these  ships  belong.  Beyond  this,  Inter- 
national Law  speaks  at  present  with  an  uncertain  voice,  leav- 
ing to  each  Power  to  resort  to  such  measures  in  detail  as 
may  be  necessary  to  ensure  the  due  j)erf()rmance  of  a  duty 
which,  as  expressed  in  general  terms,  is  universally  recog- 
nized." It  is  sincerely  to  be  hoped  that  this  is  one  of  the 
subjects  to  which  the  coming  Hague  Peace  Conference  will 
give  its  closest  attention. 

Much  severe  criticism  was  also  lavished,  especially  upon 
the  conduct  of  the  British  and  German  Governments,  in  i>er- 
mitting  vessels  carrying  the  British  and  German  flags  to 
supply  the  Baltic  IHeet  with  coal.  The  conduct  of  Germany 
in  permitting  the  use  of  its  auxiliary  cruisers  for  such  a  pur- 
pose niav  be  ojkmi  to  criticism;  but  such  trade  has  always 
been  regarded  and  treated  as  contraband  of  war.  although, 
as  Lord  Lansdowne  observed  in  a  letter  to  the  L<^nd<'»n 
Chambers  of  Shipping  and  Commerce.  British  <nvncrs  char- 

"Sce  LoikI<mi  Times  (wirkly)   for  April  2ti.  IQ04.  p.  jOo. 


204  THE    RUSSO-JAPANESE    WAR 

tering  their  vessels  for  such  purposes  might  render  them- 
selves liable  to  proceedings  under  the  Foreign  Enlistment 
Act  of  Great  Britain,-^ 

The  question  of  the  rights  and  privileges  of  belligerent 
armed  ships  in  neutral  ports  came  up  in  a  very  acute  form 
in  the  month  of  August,  1904,  when  a  number  of  vessels  be- 
longing to  the  Russian  fleet  at  Port  Arthur  succeeded  in 
escaping  to  various  ports  on  the  Chinese  coast  after  their 
defeat  at  the  hands  of  the  Japanese  on  August  10,  1904. 

Several  of  the  escaped  vessels  of  the  Russian  fleet  sought 
refuge  at  the  German  harbor  of  Tsing-tau  near  the  en- 
trance of  Kiao-chau  Bay  (the  German  concession  on  the 
Shan-tung  peninsula)  on  the  night  of  August  11,  vis.,  the 
battleship  Czarevitch,  the  protected  cruiser  Novik  and  sev- 
eral torpedo-boat  destroyers.  The  Novik,  which  was  not 
seriously  injured,  was  ordered  to  leave  within  twenty-four 
hours,  in  accordance  with  the  instructions  of  the  German 
Government ;  and  the  Czarevitch  and  several  of  the  torpedo- 
boat  destroyers,  being  in  an  unseaworthy  condition,  were 
not  permitted  to  make  repairs.  They  were,  however,  per- 
mitted to  remain  to  the  end  of  the  war  on  condition  that  the 
vessels  be  disarmed  and  their  crews  kept  in  the  custody  of 
the  German  authorities  until  the  end  of  the  v.^ar.^*  The 
cruiser  Diana  sought  refuge  in  the  French  harbor  of  Saigon, 

^  See  N.  Y.  Times  for  November  28,  1904.  Lord  Lansdowne  called 
attention  to  the  fact  that  a  similar  question  arose  during  the  Franco- 
German  war,  when  Mr.  Gladstone  laid  down  the  principle  that  such 
colliers  would  to  all  intents  and  purposes  become  storeships  for  the 
fleet. 

"■' See  the  London  Times  (weekly  ed.)  for  August  19,  1904.  The 
German  Government  is  said  to  have  taken  the  position  that  belligerent 
warships  may  repair  damages  for  purposes  of  navigation  in  any  neutral 
port,  but  that  their  armament  must  not  be  repaired  or  augmented.  See 
New  York  Times  for  August  14,  1904. 


BELLIGERENT    WARSHIPS    IX    NEUTRAL    PORTS  205 

but  was  requested  to  leave  within  twenty-four  hours  or  dis- 
mantle. She  was  finally  dismantled  on  September  lo  and 
her  crew  interned  until  the  end  of  the  war. 

On  August  13  the  Russian  cruiser  Askold  and  the  de- 
stroyer Grosovoi  arrived  at  Shanghai — the  former  vessel 
being  badly  damaged,  but  the  latter  apparently  in  fairly 
good  condition.  The  Russian  Consul  was  at  once  requested 
by  the  Chinese  authorities  at  Shanghai  to  arrange  for  their 
departure  from  that  port  within  twenty-four  hours.  He  re- 
plied that,  inasmuch  as  the  ships  needed  repairs,  the  Chinese 
demand  was  not  in  accordance  with  the  laws  of  neutrality, 
and  that  reasonable  time  must  be  allowed  for  the  necessary 
repairs.  Upon  demand  of  the  Japanese  Consul  that  the  Rus- 
sian warships  leave  Shanghai  forthwith  or  disarm,  the  Chi- 
nese local  authorities  requested  the  Commissioner  of  Cus- 
toms to  report  upon  their  condition  and  ascertain  the  period 
required  for  repairs.  That  official  having  inspected  the 
Grosovoi  on  August  i6,  reported  that  the  destroyer's  boil- 
ers and  machinery  needed  repairs.  On  the  other  hand. 
it  was  admitted  that  she  had  come  to  Shanghai  without  re- 
ducing her  speed. 

In  the  meantime,  the  situation  was  changed  by  the  receipt 
of  telegraphic  instructions  from  the  Wai-wu-pu  and  tiie 
Nanking  Viceroy  directing  that  both  vessels  forthwith  dis- 
arm or  leave  port,  and  an  intimation  on  the  part  of  Japan 
that  unless  this  were  done,  she  (Japan)  would  send  a  por- 
tion of  her  fleet  into  the  port  and  capture  these  vessels,  as 
in  the  case  of  the  Rycshitclui.  In  no  case,  it  was  announced, 
would  the  Japanese  Government  tolerate  a  state  of  affairs 
which  permits  Russian  vessels  to  find  asylum  in  Chinese  har- 
bors and  make  repairs  that  would  enable  them  to  resume  bel- 
ligerent operations.      Upon   the  d'^wnright    refusal   of   the 


206  THE    RUSSO-JAPANESE    WAR 

Russian  Consul  General  to  agree  even  to  discuss  this  propo- 
sition, the  Chinese  authorities  again  changed  front  and  or- 
dered that  a  reasonable  time  be  allowed  for  necessary  re- 
pairs. But  on  August  19,  after  another  threat  on  the  part 
of  Japan,  the  Chinese  authorities  at  Shanghai  demanded  that 
the  destroyer  Grosovoi  leave  that  port  within  twenty-four 
hours,  and  that  the  cruiser  Askold  complete  her  repairs  with- 
in forty-eight  hours  and  afterward  depart  within  twenty- 
four  hours,  or  that  both  vessels  disarm.  Upon  the  second 
refusal  of  the  Russian  Consul  General  to  discuss  such  a 
proposition,  the  question  was  referred  to  the  Consular 
Body  as  a  whole.  This  body  met  on  August  22,  but  failed 
to  accomplish  anything,  owing  to  the  inflexible  opposition 
of  the  Japanese  Consul  to  any  action  affecting  the  rights  of 
belligerents.  On  August  23,  apparently  after  the  Czar  had 
ordered  the  disarmament  of  the  vessels,  the  Chinese  exe- 
cuted another  volte  face,  and  extended  the  time  for  the  de- 
parture of  the  warships.  On  August  25  the  Japanese  Gov- 
ernment addressed  a  note  to  the  Powers  informing  them 
that,  unless  Russia  forthwith  disarm  her  warships  at  Shang- 
hai, Japan  would  be  forced  to  take  whatever  steps  she 
deemed  necessary  to  protect  her  interests  in  that  quarter.  ^^ 
This  veiled  threat  seems  to  have  had  the  desired  effect,  for 
the  Askold  and  Grosovoi  were  finally  dismantled  and  dis- 
armed during  the  first  week  of  September,  although  not  un- 
til after  further  delays,  and  a  long  controversy  between  the 
Japanese,  Russian  and  Chinese  authorities  with  respect  to 
the  disposal  of  the  crews  of  these  vessels.  It  was  at  last 
agreed  that  the  crews  be  interned  in  such  Chinese  treaty- 
ports  as  contained  Russian  consulates."® 

"''  See  New  York  Times  for  August  28,  1904. 

""  The  Russians  proposed  that  the  precedent  set  in  the  case  of  the 


BELLIGERENT    WARSHIPS    IN     NEUTRAL    PORTS  20/ 

Another  case  to  be  considered  in  this  connection  is  that 
of  the  armed  transport  Lena,  a  converted  cruiser  of  the  Rus- 
sian Volunteer  Navy,  which  arrived  at  the  port  of  San 
Francisco  on  September  ii,  1904.  Her  captain  stated  that 
the  ship's  engines  and  boilers  needed  repairs.  It  was  be- 
lieved at  the  time  that  the  vessel  was  on  a  cruising  expedi- 
tion with  the  object  of  preying  upon  neutral  commerce  or 
of  capturing  Japanese  vessels  in  the  Pacific.  The  Japanese 
Consul  at  San  Francisco  promptly  demanded  that  the  vessel 
be  required  to  leave  within  twenty-four  hours.  Mr.  Strat- 
ton,  the  Collector  of  the  Port,  refused  to  permit  an  inspec- 
tion of  the  ship  by  the  Japanese  Consul,  rightly  insisting 
that  "the  neutrality  of  the  United  States  will  be  maintained 
without  regard  to  any  request  or  act  of  the  Japanese  Con- 
sul," and  that  "this  matter  is  between  the  United  States  and 
the  Russian  Government."^^  An  inspection  of  the  vessel 
by  the  American  naval  authorities  showed  that  the  boilers 
were  in  such  a  bad  condition  that,  although  the  ship  could 
make  ten  knots  an  hour  with  them,  it  would  not  be  sea- 

Mmtdjur  be  followed,  and  that  the  crews  he  sent  home  at  the  first 
opportunity  which  presented  itself.  The  Japanese  insisted,  however, 
that  the  same  procedure  be  followed  as  in  the  cases  of  the  Russian 
vessels  at  the  German  port  Tsing-tau.  viz.,  that  the  crews  be  retained 
on  Chinese  territory.  It  was  claimed  by  the  Japanese  that  the  Rus- 
sians violated  their  parole  in  the  case  of  the  paroled  crews  of  the 
Variag  and  Koriets,  who  were  drafted  later  into  the  service  of  the 
Baltic  Fleet.  See  Shanghai  dispatch  to  the  Chicago  Tribune  for  Au- 
gust 29,  1904.  See  New  York  Times  for  October  27,  1904,  for  confir- 
mation of  this  report. 

For  the  facts  bearing  on  the  whole  controversy,  sec  especially  Lon- 
don Times  (weekly  ed.)  for  August  19  and  26  and  September  2  and 
9.  1904.  For  some  interesting  correspondence  bearing  on  this  case,  see 
House  Doc,  s8th  Congress,  3d  session  (Foreign  Rel.  for  1904),  pp. 
140  flf  and  426-27. 

"See  the  New  York  Times  and  Chicago  Tribune  for  September  13. 
1904. 


208  THE    RUSSO-JAPANESE    WAR 

worthy  in  a  storm.  It  was  estimated  that  she  would  need 
six  weeks  for  temporary  repairs.  In  the  meantime,  all  nec- 
essary precautions  were  taken  to  prevent  interference  or  the 
sending  in  to  the  vessel  of  unauthorized  supplies. 

Acting  upon  the  written  request  of  the  commander  of  the 
Le'na  addressed  to  Rear-Admiral  Goodrich,  President 
Roosevelt  issued  an  order  on  September  15  that  the  Rus- 
sian cruiser  be  disarmed  and  taken  in  custody  by  the  United 
States  naval  authorities  until  the  close  of  the  war  between 
Russia  and  Japan. ^®  The  officers  and  crew  of  the  vessel 
were  detained  on  parole  at  San  Francisco  until  the  end  of 
the  war.^* 

^  The  conditions  of  disarmament  prescribed  by  the  President  were : 
that  the  Lena  be  taken  to  the  Mare  Island  Navy  Yard  and  there  "dis- 
armed by  the  removal  of  small  guns,  breech  blocks  of  large  guns,  small 
arms,  ammunition  and  ordnance  stores  and  such  other  dismantlement 
as  may  be  prescribed  by  the  commandant  of  the  navy  yard ;  that  the 
captain  give  a  written  guaranty  that  the  Lena  shall  not  leave  San  Fran- 
cisco until  peace  shall  have  been  concluded;  that  the  officers  and  crew 
shall  be  paroled  not  to  leave  San  Francisco  until  some  other  under- 
standing as  to  their  disposal  may  be  reached  between  the  United  States 
Government  and  both  the  belligerents ;  that  after  disarmament  the  ves- 
sel may  be  removed  to  a  private  dock  for  such  reasonable  repairs  as  will 
make  her  seaworthy  and  preserve  her  in  good  condition  during  her  de- 
tention, or  may  be  so  repaired  at  the  navy  yard  if  the  Russian  com- 
mander should  so  elect;  that  while  at  a  private  dock  the  commandant 
of  the  navy  yard  at  Mare  Island  shall  have  custody  of  the  ship  and  the 
repairs  shall  be  overseen  by  an  engineer  officer  to  be  detailed  by  the 
commandant  and  that,  when  so  repaired,  if  peace  shall  not  then  have 
been  concluded,  the  vessel  shall  be  taken  back  to  Mare  Island  Navy 
Yard  and  be  there  held  in  custody  until  the  end  of  the  war."  See  Mr. 
Adee  to  Mr.  Takahira  in  House  Doc.  of  58th  Congress,  3d  session  (For. 
Rel.  for  1904),  p.  429.  For  the  correspondence  with  Russia,  see  Ibid, 
pp.  78s  ff- 

"  It  appears  that  three  of  the  Russian  officers  of  the  Lena  afterwards 
broke  their  parole  and  went  to  St.  Petersburg.  Yielding  to  the  demand 
of  the  United  States,  Russia  not  only  ordered  them  to  return  to  San 
Francisco,  but  reduced  them  one  grade  as  a  punishment.  N.  Y.  Times 
for  February  28,  1905. 


BliLLHIKKENT    WARSHIPS    IN    NKITRAL    PORTS  209 

The  last  set  of  cases  to  be  considered  in  this  connection 
is  that  of  the  three  interned  Russian  cruisers — the  Aurora, 
Oleg  and  Jcmtchug — which  souglit  refuge  in  the  harbor  of 
Manila  on  June  3,  after  the  defeat  and  almost  total  destruc- 
tion of  the  Baltic  Meet  in  the  Korean  Strait  on  May  2}, 
1905.  All  of  the  vessels  were  more  or  less  seriously  dam- 
aged, and  there  were  many  wounded  men  on  board.  The 
Russian  Rear  Admiral  Enquist  asked  permission  to  make  re- 
pairs and  to  take  on  coal  and  provisions,  alleging  that  he 
could  not  sail  except  in  a  smooth  sea.  The  naval  board  ap- 
pointed by  Admiral  Train  to  e.xamine  the  condition  of  the 
Russian  cruisers  at  Manila  reixirted  that  the  Olcg  would  re- 
quire sixty  days,  the  Aurora,  thirty  days,  and  the  Jcmtchug, 
seven  days,  to  effect  repairs.  Governor  Wright  is  said  to 
have  given  the  Russian  Admiral  pemiission  to  remain  long 
enough  to  make  necessary  repairs;  but  he  w.is  overruled  by 
President  Roosevelt  who.  acting,  it  is  said,  ujxjn  the  advice 
of  Secretary  Taft,  decided  on  June  5  that  the  Russian  ves- 
sels must  either  dismantle  and  l)e  interneii  or  leave  Manila 
within  twenty-four  hours,  on  the  ground  that  "time  can  not 
be  given  for  the  repair  of  injuries  received  in  battle."'** 

This  decision  is  rejx)rted  to  have  been  criticiseil  in  Rus- 
sia, where  it  was  thought  that  .\dmiral  Fnquist  should  have 
been  allowed  to  make  such  repairs  as  were  necessary  to  ren- 
der his  ships  seaworthy ;  but  no  representations  on  this  head 

"A  distinction  is  said  to  have  been  <lrawn  by  Secretary  Taft  "between 
the  disablement  of  a  vessel  caused  by  a  st<>nn  or  by  an  explosion  or 
other  accident  on  board,  on  the  one  hand,  and  the  damage  suffered  in 
battle,  on  the  other."  Sec  editorial  in  N.  Y.  Sun  for  June  7.  1905.  As 
the  Sun  remarks:  "The  <!istinction  is  a  just  one.  It  is  obvious  that  a 
neutral  Power  which  should  open  its  ports  to  vessels  that  had  been 
rrippied  by  the  cnrniy  fur  the  pur])ose  of  enablinK  them  to  aRain  take  to 
the  sea  for  an  aKKrcs<iive  purpose,  would  not  In-  exercisuiR  mipartiality, 
but  really  acting  as  the  ally  of  a  belligerent '" 


2IO 


THE    RUSSO-JAPANESE    WAR 


appear  to  have  been  made  at  Washington  by  the  Russian 
Government,  which  soon  decided  in  favor  of  internment. ^^ 
In  the  United  States  the  President's  decision,  which  was 
characterized  as  a  ''new  principle  of  International  Law," 
was  greeted  with  a  chorus  of  approval. ^^ 

In  stating  the  law  or  custom  which  has  hitherto  generally 
been  supposed  to  govern  such  cases,  it  should  be  observed, 
in  the  first  place,  that  the  so-called  Right  of  Asylum  of  bel- 
ligerent armed  ships  in  neutral  ports  only  exists,  if  at  all, 
in  cases  where  the  vessels  are  driven  into  port  by  stress  of 
weather  or  when  they  have  otherwise  been  reduced  to  an 
unseaworthy  condition;  but  permission  to  enter  a  port  and 
enjoy  its  hospitality,  at  least  for  a  short  time,  is  assumed  in 
the  absence  of  any  express  notice  to  the  contrary.^^  "Never- 
theless it  is  a  privilege  based  upon  the  consent  of  the  neu- 
tral, and  therefore  capable  of  being  accompanied  by  any  con- 
ditions he  chooses  to  impose."^*     As  stated  by  Hall,  it  has 

^^  This  decision  can  not  have  been  really  unpalatable  to  the  Russians, 
for  the  Russian  cruisers,  once  outside  of  Manila,  would  soon  have  fallen 
victims  to  the  victorious  Japanese  fleet. 

'^  In  the  case  of  the  Terek,  the  Government  of  the  Netherlands  ap- 
pears to  have  assumed  a  still  more  extreme  attitude  than  that  taken  by 
President  Roosevelt  in  the  case  of  the  Russian  cruisers  interned  at  Ma- 
nila. The  Russian  cruiser  Terek  arrived  at  Batavia  in  Java  on  June  28, 
1905,  without  enough  coal  on  board  to  enable  her  to  proceed  on  her  voy- 
age. Being  unable  to  take  on  a  sufficient  supply  within  the  time  fixed 
for  the  stay  of  belligerent  warships  in  that  port  (twenty-four  hours), 
the  port  authorities,  after  consulting  with  the  Home  Government,  or- 
dered the  vessel  to  disarm  and  remain  until  the  end  of  hostilities  be- 
tween Russia  and  Japan.  See  N.  Y.  Sun  for  August  23,  1905,  and  Lon- 
don Times  (weekly  ed.)  for  July  7,  1905. 

^'  See  Exchange  v.  McFaddon,  7  Cranch,  116. 

^  Lawrence,  Principles,  p.  509.  Such  conditions  must,  however,  be 
impartially  applied  to  both  belligerents.  Thus  Austria  prohibited  all 
belligerent  men-of-war  from  entering  the  port  of  Cattara  during  the 
Crimean  War,  and  Great  Britain  forbade  the  access  of  all  belligerent 
warships  to  the  ports  of  the  Bahama  Islands  during  the  American  Civil 


BELLIGERENT    WARSHIPS    IN    NEUTRAL    PORTS  211 

hitherto  generally  been  held  that  "a  vessel  of  war  may  en- 
ter and  stay  in  a  neutral  harbor  without  any  special  reasons; 
she  is  not  disarmed  on  taking  refuge  after  defeat;  she  may 
obtain  such  repair  as  will  enable  her  to  continue  her  voyage 
in  safety;  she  may  take  in  such  provisions  as  she  needs,  and 
if  a  steamer  she  may  fill  up  with  coal ;  nor  is  there  anything 
to  prevent  her  from  enjoying  the  security  of  neutral  waters 
for  so  long  as  may  seem  good  to  her."'''' 

War.  As  noted  above  (see  note  on  p.  199),  the  Scandinavian  countries 
wholly  prohibited  the  entry  into  certain  of  their  ports  of  Russian  and 
Japanese  warships  soon  after  the  outbreak  of  the  Russo-Japanese  War. 

"Hall  (.3d  ed.).  §  231.  p.  630.  Rut  Hall  (p.  631  )  admits  that  "in  the 
treatment  of  ships,  as  in  all  other  matters  in  which  the  neutral  holds  his 
delicate  scale  between  two  belligerents,  a  tendency  toward  the  enforce- 
ment of  a  harsher  rule  becomes  more  defined  with  each  successive  war." 
As  every  one  knows,  the  rule  is  entirely  different  with  respect  to  bellig- 
erent troops  which  have  been  driven  into  neutral  territory  or  which 
have  sought  refuge  on  neutral  .soil.  Such  troops  are  interned  and  kept 
there  until  paroled  or  until  the  close  of  the  war.  Sec  Arts.  57  and  58  of 
the  Regulations  Res  faceting  the  La'i'S  and  Customs  of  War  on  Land 
adopted  by  the  Hague  Conference,  Holls,  p.  160. 

Dana  (note  208  to  Whcaton,  p.  524)  thus  defines  the  obligations  of 
neutrals  in  respect  to  the  use  of  its  ports  by  belligerent  cruisers:  "It 
may  be  considered  the  settled  practice  of  nations,  intending  to  be  neu- 
tral, to  prohibit  belligerent  cruisers  from  entering  their  ports,  except 
from  stress  of  weather  or  other  necessity,  or  for  the  purpose  of  obtain- 
ing provisions  and  making  repairs  requisite  for  seaworthiness.  They 
must  not  increase  their  armament  or  crew,  or  add  to  their  belligerent 
efficiency.  It  is  now  the  custom  to  fix  a  short  time  for  the  stay  of  such 
vessels,  after  they  have  done  what  is  permitted  them,  or  the  marine 
exigency  has  passed. — usually  twenty-four  hours.  These  rules  are.  how- 
ever, at  the  option  of  the  neutral." 

Taylor  (p.  690)  lays  down  the  following  rules:  "In  addition  to  the 
observance  of  all  quarantine  rules,  local  revenue  and  harbor  regulations, 
the  belligerent  ship  nnist  respect  all  prohibitions  disi^iu-d  to  j)revcnt  the 
use  of  the  neutral  port  for  the  purposes  other  than  those  of  immediate 
necessity.  While  the  fighting  force  of  such  a  ship  may  not  he  reinforced 
or  recruited  in  such  a  port,  nor  supplies  of  arms  and  war-like  stores 
or  other  equipments  of  direct  use  for  war  obtained,  such  supplies  .ind 
equipments  may  be  purch.iscd  as  are  necessary  to  sustain  life  or  carry 


212  THE    RUSSO-JAPANESE    WAR 

It  is  generally  assumed  in  current  discussions  (and  Japan 
appears  to  have  acted  on  this  assumption)  that  it  would  be 
a  breach  of  International  Law  for  a  neutral  state  to  permit 
belligerent  warships  to  remain  in  a  neutral  port  longer  than 
twenty-four  hours,  except  in  case  of  necessity,  or  to  allow 
such  vessels  to  take  in  supplies  of  coal  oftener  than  once  in 
three  months,  and  then  only  in  quantity  sufficient  to  take 
them  to  the  nearest  home  port  or  to  some  nearer  neutral  des- 
tination. It  is  true  that  neutral  states  are  under  an  interna- 
tional obligation  to  prevent  their  ports  and  waters  from  be- 
ing used  as  a  base  of  military  operations  or  as  a  constant 
and  regular  base  of  supplies  (whether  of  arms,  coal  or  pro- 
visions), or  for  the  purpose  of  augmenting  the  force  of  an 
armed  vessel  in  the  service  of  a  belligerent  or  of  increasing 

on  navigation.  If  she  is  in  need  of  repairs  she  may  procure  whatever  is 
needful  to  put  her  in  a  seaworthy  condition,  including  masts,  spars  and 
cordage.  But  she  can  not  make  such  structural  changes  as  will  increase 
her  efficiency  as  a  fighting  machine,  either  of  offense  or  defense.  She 
may  take  in  such  provisions  as  she  needs ;  and,  if  a  steamer,  she  may 
purchase  enough  coal  to  enable  her  to  reach  the  nearest  port  of  her  own 
country." 

Oppenheim,  the  most  recent  authority  on  International  Law  (II, 
§  332,  pp.  354-55),  formulates  six  rules  which  a  neutral  is  bound  to  ob- 
serve in  order  to  prevent  "the  neutral  maritime  belt  and  neutral  ports" 
from  being  made  the  base  of  naval  operations.  Among  these  the  follow- 
ing are  especially  noteworthy  as  bearing  upon  questions  arising  during 
the  Russo-Japanese  War:  (i)  "A  neutral  must,  as  far  as  is  in  his 
power,  prevent  belligerent  men-of-war  from  cruising  within  his  portion 
of  the  maritime  belt  for  the  purpose  of  capturing  enemy  vessels  as  soon 
as  they  leave  the  belt."  (4)  "A  neutral  must  prevent  belligerent  men- 
of-war  admitted  to  his  ports  or  maritime  belt  from  taking  more  pro- 
visions and  coal  than  are  necessary  to  bring  them  safely  to  the  nearest 
port  of  their  home  state."  (6)  "A  neutral  must  prevent  belligerent 
men-of-war  admitted  into  his  ports  from  remaining  there  longer  than  is 
necessary  for  ordinary  and  legitimate  purposes."  He  remarks  that  "a 
neutral  would  certainly  violate  his  duty  of  impartiality  if  he  were  to  al- 
low belligerent  men-of-war  to  winter  in  his  ports  or  to  stay  there  for  the 
purpose  of  waiting  for  other  vessels  of  the  fleet  or  transports." 


BELLIGERENT    WARSHIPS    IN    NEUTRAL    PORTS  JI3 

its  military  efficiency.  It  is  also  true  that  a  considerable 
practice  has  grown  up  in  recent  times  in  favor  of  the  twenty- 
four-hour  rule  and  in  favor  of  strictly  limiting  the  supply 
of  coal  permitted  to  belligerent  armed  vessels  in  neutral 
ports ;  but  the  details  and  specific  content  of  such  means  or 
measures  for  carrying  out  their  international  obligations 
have  been  left  by  International  Law  to  neutral  govern- 
ments.^" 

As  has  been  said,  neutral  governments  may  impose  such 
conditions  upon  belligerent  armed  vessels  in  their  ports  or 
waters  as  they  deem  necessary  or  advisable  for  the  purpose 
of  enforcing  their  neutral  obligations,  provided  such  rules 

"  The  rule  limiting  the  stay  of  belligerent  armed  vessels  in  a  neutral 
port  to  twenty-four  hours,  "except  in  the  case  of  stress  of  weather,  in- 
juries or  exhaustion  of  provisions  nccessarj-  for  the  safety  of  the  voy- 
age, save  that  an  interval  of  twenty-four  hours  must  elapse  between  the 
sailing  of  vessels  of  opponents."  was  first  introduced  into  international 
practice  by  Great  Britain  during  the  American  Civil  War.  On  January 
31,  1862,  the  British  Government  published  a  scries  of  neutrality  regula- 
tions more  stringent  than  any  theretofore  issued.  They  provided  that 
"war  vessels  of  either  belligerent  should  be  required  to  depart  within 
twenty-four  hours  of  their  entry,  unless  they  needed  more  time  for  tak- 
ing in  innocent  supplies  or  effecting  lawful  repairs,  in  which  case  they 
were  to  obtain  special  permission  to  rctnain  for  a  longer  period,  and 
were  to  put  to  sea  within  twenty-four  hours  after  the  reason  for  their 
remaining  ceased.  They  might  freely  purchase  provisions  and  other 
things  necessary  for  the  subsistence  of  their  crews;  but  the  amount  of 
coal  they  were  allowed  to  receive  was  limited  to  as  much  as  was  neces- 
sary to  take  them  to  the  nearest  port  of  their  own  country.  Moreover, 
no  two  supplies  of  coals  were  to  be  obtained  in  British  waters  within 
three  months  of  each  other."    Lawrence.  Principles,  pp.  310-11. 

These  restrictions  upon  the  liberty  of  belligerent  warships  in  neutral 
ports  were  adopted  by  the  I'nited  States  in  1870,  and  they  have  been  im- 
posed by  Great  Britain  and  the  United  States  in  successive  wars.  They 
have  also  been  copied,  either  in  whole  or  in  part  by  other  states,  c.  g..  by 
the  Netherlands,  Brazil.  China,  the  Scandinavian  countries,  Russia.  Ja- 
pan, etc.  It  is  well  known  that  the  twenty-four-hour  rule  was  enforced 
by  Great  Britain  and  Portugal  during  the  Spanish-.Xmcrican  War  in  1898. 
The  rule  was  also  enforced  by  Germany  durmg  the  Russo-Japanese  War. 


214 


THE    RUSSO-JAPANESE    WAR 


or  regulations  as  they  choose  to  make  are  impartially  en- 
forced against  both  belligerents.  But  they  are  bound  by  the 
law  of  nations  to  make  such  rules  and  provide  such  means 
for  their  enforcement  as  may  be  necessary  to  insure  a  strict 
and  impartial  neutrality — a  neutrality  which  consists  in  ab- 
solute abstention  from  any  acts  or  services  which  would  di- 
rectly tend  to  strengthen  the  fighting  forces  of  either  bel- 
ligerent or  which  would  amount  to  an  actual  or  potential 
participation  in  the  war.  For  this  reason  a  belligerent  armed 
vessel  should  not  be  allowed  to  remain  in  a  neutral  port  for 
a  longer  period  of  time  than  is  absolutely  necessary  in  order 
to  procure  innocent  supplies  or  to  effect  repairs  requisite  for 
seaworthiness ;  and  steamships  should  not  be  allowed  to  coal 
except  in  case  of  necessity,  and  then  only  to  take  on  a  quan- 
tity sufficient  to  take  them  to  the  nearest  home  port  or  (bet- 
ter still)  to  the  nearest  available  neutral  destination.^^ 

In  the  light  of  the  lesson  read  to  the  world  during  the 
Russo-Japanese  war  by  the  Baltic  Fleet,  may  we  not  add 
that  a  belligerent  armed  vessel  or  fleet  proceeding  to  the 
seat  of  war  should  not  be  permitted  to  make  use  of  neutral 
ports  or  waters  for  the  purpose  of  coaling  or  of  making  re- 
pairs? As  Premier  Balfour,  speaking  on  the  question  of  the 
use  of  neutral  ports  by  belligerents,  said  in  the  House  of 
Commons  in  August,  1904:  "The  essence  of  the  matter  is 
that  neutral  ports  ought  not  to  be  used  as  bases  for  hostile 
operations,  and  neutrals  ought  not  to  allow  their  coal  or 


"  It  has  also  been  customary,  for  a  century  or  more,  to  interpose  a 
time  limit  of  twenty-four  hours  between  the  sailings  of  two  or  more 
hostile  ships  in  neutral  waters.  The  object  of  this  rule  is  to  prevent 
fighting  in  the  neighborhood  of  these  waters.  It  dates  from  the  mid- 
dle of  the  eighteenth  century.  This  is  the  custom  which  is  generally 
referred  to  in  older  treatises  as  the  twenty-four-hour  rule.  See,  e.  g.. 
Hall,  Treatise,  3d  ed.,  note  on  p.  631. 


BELLIGEREXT    WARSHIPS    IN    N'EL'TRAL    PORTS  21 5 

anything  else  to  be  used  for  the  purpose  of  facilitating  such 
operations."'** 

The  measure  or  amount  of  repairs  permitted  or  supplies 
allowed  to  belligerent  armed  vessels  in  neutral  ports  should 
be  determined  by  what  is  absolutely  needed  to  render  them 
navigable  or  seaworthy""*  as  distinct  from  rendering  them 
more  efficient  as  fighting  machines  or  increasing  their  war- 
like capacity.*"  "Speaking  generally,  we  may  say  that  a 
belligerent  ship  must  not  leave  a  neutral  port  a  more  efficient 
fighting  machine  than  she  entered  it,  except  in  so  far  as  in- 
creased efficiency  may  come  from  increased  seaworthiness 
or  a  better  supply  of  provisions.  On  the  other  hand,  neu- 
trals may  permit  the  supply  of  things  necessary  for  subsist- 
ence, and  they  may  repair  in  these  ports  and  waters  damage 
due  to  the  action  of  the  sea.  A  distinction  is  drawn  between 
what  is  necessary  for  life  and  what  is  necessary  for  war."*' 

It  appears  from  the  foregoing  account  that  a  series  of  new 
precedents  has  been  created  in  this  war  in  favor  of  the  view 
that  belligerent  armed  vessels  seeking  refuge  in  neutral  ports 
ought  to  be  dismantled  and  disarmed,  and  their  crews  pa- 

"See  London  Times  (weekly)  for  August  19,  1904.  P-  535- 

"If  the  precedent  set  by  President  Roosevelt  in  the  case  of  the  Rus- 
sian cruisers  interned  at  Manila  he  followed  in  future  wars  (and  it  is  to 
be  hoped  that  this  will  be  done)  wc  shall  have  to  add  "unless  for  in- 
juries received  in  battle." 

*•  Under  this  rule  the  engines  and  boilers  of  such  a  vessel  might  be 
repaired,  but  not  so  her  guns  or  armament. 

"Lawrence,  IVar  and  Xrutrality  ( 2ni\  ed.),  p.  121.  Lawrence  adds: 
"It  is  not  very  logical,  because  a  man  must  live  before  he  can  fight,  and 
those  things  which  keep  him  in  health  fit  him  to  perform  his  duties  as 
a  combatant.  But,  such  as  it  is,  it  has  to  be  observed."  The  rule  seems 
to  be  a  sort  of  compromise  between  the  obligations  of  humanity  and 
comity  on  the  one  hand  and  of  neutrality  on  the  other.  CY.  Taylor,  p. 
690,  and  Oppcnheim,  II.  S  346.  Oppenheim  permits  slight  or  small  re- 
pairs of  the  vessel  herself,  hut  not  of  the  armaments. 


2l6  THE    RUSSO-JAPANESE    WAR 

roled  or  detained  until  the  end  of  the  war,  as  in  the  analo- 
gous case  of  defeated  or  fugitive  troops  seeking  refuge  from 
defeat  or  pursuit  on  neutral  territory  in  warfare  on  land. 
But  the  force  of  these  precedents  is  perhaps  somewhat  weak- 
ened by  the  fact  that  some  of  the  Russian  vessels  cited 
sought  refuge  in  Chinese  territory  under  the  shadow  of  a 
Government  which  was  incapable  of  guaranteeing  a  perfect 
neutrality  or  of  perfectly  fulfilling  its  neutral  obligations. 
It  may  also  be  suspected  that  the  Russian  Government,  un- 
der the  circumstances,  was  not  wholly  averse  to  disarma- 
ment under  proper  guarantees  of  protection  from  attack, 
such  as  could  be  furnished  by  the  Governments  of  Germany 
and  the  United  States.*^ 

In  any  case  the  force  and  validity  of  the  twenty-four-hour 
rule  was  greatly  strengthened  during  this  war,  and  the  con- 
duct of  the  Powers  in  refusing  or  strictly  limiting  supplies 
of  coal  to  Russian  warships  of  the  Baltic  Fleet  shows  that 
modern  governments  are  becoming  more  fully  alive  to  their 
neutral  duties  in  this  respect  also.  It  looks  as  though  a  new 
chapter  in  the  history  of  International  Law  has  been  written, 
and  it  would  seem  that  governments  now  take  a  very  differ- 
ent view  of  their  neutral  obligations  than  they  did  in  the 
days  when  Confederate  cruisers,  built  or  purchased  in  for- 
eign ports,  were  able  to  begin  and  complete  their  errands  of 
destruction  without  ever  having  as  much  as  touched  at  a 
Confederate  port. 

*^  In  the  case  of  the  Lena,  at  any  rate,  this  action  was  taken  at  the  ex- 
press request  of  the  Russian  commander. 


CHAPTER  VIII 

The  North  Sea  Incident 

The  most  sensational  incident  of  tlie  Russo-Japanese  War 
was  the  so-called  North  Sea  outrage.  On  the  evening  of 
October  23.  1904,  several  British  steam  trawlers  arrived  at 
Hull,  in  England,  and  reported  that  early  on  the  morning 
of  October  22  (toward  i  a.  m.)  nearly  fifty  small  vessels, 
belonging  mainly  to  the  Hull  "Gamecock''  steam  fishing 
fleet,  had  been  suddenly  attacked  and  fired  upon  on  the  high 
seas  by  warships  belonging  to  the  Russian  Baltic  squadron 
then  on  its  ill-fated  voyage  to  the  Far  East.  It  appears  that 
on  the  night  in  question,  which  was  rather  dark  and  some- 
what foggy,  these  fishing  vessels  were  quietly  engaged,  un- 
der the  direction  of  their  admiral,  in  trawling  for  cckI  ofT  the 
Dogger  Bank  in  the  North  Sea.  All  the  boats  carried  their 
proper  lights,  and  they  were  employing  the  conventional 
rockets  in  signalling  to  each  other,  when  they  observed  that 
the  searchlights  of  several  steamers  belonging  to  the  first 
division  of  the  Baltic  Fleet  were  being  turned  upon  them. 
This  group  of  steamers  passed  on.  but  a  second  group  ap- 
proached, and  presently  a  third,  using  .searchlights  and  mak- 
ing signals.  C^nc  of  the  vessels  belonging  to  the  third  group 
suddenly  opened  fire,  which  soon  became  more  or  less  gen- 
eral. After  ten  or  twelve  minutes  the  firing  censed  as  sud- 
denly as  it  had  begun,  and  the  Russian  vessels  continuc<l 
their  voyage  without  making  the  slightest  attcnijit  to  save 


2l8  THE    RUSSO-JAPANESE    WAR 

life  or  to  ascertain  the  amount  of  damage  they  had  done/ 
It  was  soon  learned  that  one  trawler  had  been  sunk  and  five 
others  more  or  less  damaged.^ 

This  apparently  wanton  and  deliberate  attack  upon  inno- 
cent fishermen  was  regarded  by  the  English  as  merely  the 
culminative  event  in  a  long  series  of  "outrages"  of  which 
Russia  had  been  guilty  during  the  war,  and  it  naturally 
stirred  up  British  public  feeling  and  opinion  to  the  highest 
pitch  of  excitement  and  expression.  The  London  newspa- 
pers were  unanimous  in  their  demand  for  apology  and  repa- 
ration, and  even  men  like  Sir  Frederick  Pollock  denounced 
it  as  "an  act  of  war."^ 

On  October  24  Lord  Lansdowne  instructed  Sir  Charles 

^  Lord  Lansdowne  to  Sir  Charles  Hardinge  in  Correspondence  Relat- 
ing to  the  North  Sea  Incident,  Parliamentary  Blue  Book  on  Russia, 
No.  2  (1905),  No.  2.  The  fishermen  claimed  that  a  Russian  ship  was 
detached  to  watch  them.  This  vessel  was  said  to  have  remained  on  or 
near  the  scene  of  action  for  about  six  hours,  without  offering  aid. 
Admiral  Rojestvensky  denied  that  any  Russian  vessel  had  remained 
behind,  and  argued  that  it  must  have  been  a  Japanese  torpedo  boat 
which  the  fishermen  saw.  The  British  "Observations"  (see  Archives 
Diplomatiques,  t.  94,  pp.  475  ff.)  suggest  that  it  was  the  Russian  trans- 
port Kamchatka,  which  had  remained  in  the  rear  of  the  fleet  in  conse- 
quence of  an  accident  to  her  machinery,  and  which,  believing  herself  to 
be  attacked  by  torpedo  boats,  fired  upon  the  Swedish  vessel,  Aldebaren, 
and  other  unknown  vessels  on  the  evening  of  October  21.  See  para- 
graphs 5  and  6  of  the  Report  of  the  Commissioners. 

'  See  Art.  13  of  the  Report  of  the  Commissioners,  published  as  a 
Parliamentary  Blue  Book  on  Russia,  No.  3  (1905),  and  the  Coroner's 
Verdict  in  London  Times  (weekly)  for  November  4,  1904. 

^  Lord  Roseberry  referred  to  it  as  "an  unspeakable  outrage,"  and  Sir 
H.  C.  Campbell-Bannerman  called  it  "an  atrocious  act"  and  "an  un- 
paralleled and  cruel  outrage."  The  King  of  England  contented  himself 
with  a  milder  characterization.  He  simply  called  it  "an  unwarranted 
action."  Perhaps  the  Hon.  A.  Lyttleton,  Secretary  of  State  for  the  Col- 
onies, best  expressed  the  general  opinion  in  England  when  he  declared 
that  the  tragedy  was  "either  the  result  of  a  murderous  intention  or  of 
wicked  negligence." 


THE    .NORTH    SEA    INCIDENT  2I9 

Hardinge,  the  British  ambassador  at  St.  Petersburg,  to  in- 
form Count  Lamsdorff  of  what  liad  rxrcurred,  and  to  say- 
that  "the  indignation  provoked  by  the  incident  can  not  pos- 
sibly be  exaggerated."  In  this  communication  the  British 
Secretary  of  State  for  Foreign  Affairs  did  not  hesitate  to 
declare  that  "the  whole  action  would  seem  to  have  been  of 
the  most  deliberate  character,"  and  that  it  "can  only  have 
been  due  to  the  most  culpable  negligence."  He  concluded 
as  follows : — "The  matter  is  one  which  admits  of  no  delay. 
His  Majesty's  Government  prefer  not  to  formulate  their 
demands  until  the  explanations,  which  no  doubt  the  Russian 
Government  will  hasten  to  lay  before  them,  have  been  re- 
ceived, but  it  will  be  their  duty  to  rcfjuirc  ample  apology  and 
complete  and  prompt  reparation,  as  well  as  security  against 
the  recurrence  of  such  intolerable  incidents."* 

On  October  25  the  following  message  from  the  Czar 
was  brought  to  the  British  Embassy  in  St.  Petersburg  by 
Count  Lamsdorff : 

"No  report  has  reached  His  Majesty  from  .Vdiniral  Rojest- 
vensky,  and  he  can  therefore  only  consider  that  the  unfortunate 
accident  which  has  taken  place  off  Dogger  Bank  must  be  at- 
tributed to  an  unfortunate  misunderstanding.  The  Emperor  is. 
however,  anxious,  in  view  of  the  sad  loss  of  life  which  has 
taken  place,  to  convey  to  His  Majesty,  the  King,  and  to  His 
Majesty's  Government  his  sincere  regrets  at  the  fKCurrence : 

*  Blue  Book  on  Russia,  No.  2  (1905),  No.  2.  In  his  viTh.i!  reply  (No. 
3)  to  the  representations  of  the  British  ambassador,  Count  Lamsdorff 
urged  that  "he  had  no  information  beyond  that  given  by  the  panic- 
stricken  fishermen."  the  correctness  of  wliose  deposition  he  was  unable 
to  admit.  But  he  assured  Sir  Diaries  Hardinge  that  "thorough  inquiries 
would  be  made,  and.  if  any  persons  were  found  guilty  of  >uch  action, 
adequate  punishment  wouUl  be  inflicted  on  them,  and  full  reparation  be 
nude  to  the  sufferers."  He  felt  sure  that  some  "terrible  misunderstand- 
ing" had  arisen,  the  solution  of  which,  without  inquiry,  was  impossible. 


220  THE    RUSSO-JAPANESE    WAR 

His  Majesty  will  take  the  necessary  measures  of  reparation  to 
the  sufferers  as  soon  as  a  clear  account  is  given  of  the  cir- 
cumstances in  which  the  incident  occurred."^ 

These  assurances  were  deemed  wholly  inadequate  by  the 
British  Government  as  well  as  by  the  public  and  the  news- 
papers, a  considerable  section  of  the  London  Press  even  go- 
ing to  the  extent  of  demanding  that  the  Baltic  Fleet  be 
stopped  and  forcibly  detained,  and  that  the  Russian  Ad- 
miral, together  with  those  of  his  officers  responsible  for  the 
outrage,  be  peremptorily  cashiered  and  disgraced  without 
further  investigation. 

In  the  meantime  English  feeling  against  Russia  ran  higher 
and  higher.  Preliminary  orders  for  the  mobilization  of  the 
British  fleets  Were  issued  by  the  British  Admiralty.  The 
Channel,  Mediterranean,  and  Home  squadrons  were  ordered 
to  meet  at  Gibraltar  with  a  view  of  intercepting  the  Russian 
fleet  on  its  way  southward  in  case  such  action  were  neces- 
sary, and  instructions  for  the  mobilization  of  25,000  naval 
reserves  were  said  to  have  been  issued.® 

In  an  interview  with  Count  Benckendorff,  the  Russian  am- 
bassador at  London,  on  the  morning  of  October  25,  Lord 
Lansdowne,  while  not  undertaking  finally  to  formulate  the 
demands  of  the  British  Government,  intimated  that  they 
must  include :  ( i )  an  ample  apology  and  disclaimer  from 
the  Russian  Government;  (2)  the  fullest  reparation  to  the 
sufferers;  (3)  a  searching  inquiry  with  a  view  to  finding 
out  who  were  to  blame  for  what  must  in  any  case  be  regard- 
ed as  "a  culpable  blunder,"  and  "adequate  punishment  of 

**  Op  cit.,  No.  8.  Count  Lamsdorfif  added  that  the  incident  appeared  to 
him  "incomprehensible." 

'  See  Associated  Press  dispatches  for  October  26,  1904.  The  last  state- 
ment lacks  oflficial  confirmation  by  the  British  Government. 


THE    NORTH    SEA    IN'CIDEXT  221 

the  persons,  whoever  they  might  be,  who  proved  to  be  re- 
sponsible;" (4)  security  against  a  repetition  of  such  inci- 
dents/ 

In  reply  to  a  communication  sent  by  Count  Benckendorff, 
who  had  again  expressed  the  deepest  regret  of  the  Russian 
Government  at  the  "unfortunate  incident."  and  who  repeat- 
ed the  Czar's  promise  of  ample  reparation  to  the  sufferers, 
Lord  Lansdowne  assured  the  Russian  ambassador  that  this 
was  "not  enough."  In  a  personal  conference  with  Count 
Benckendorff  on  the  same  day  (October  26)  the  British 
Minister  used  very  plain  language  indeed.  Commenting 
upon  the  evident  fact  that,  although  the  Russian  Admiral 
had  failed  to  make  a  report,  no  effective  steps  had  apparent- 
ly been  taken  to  intercept  the  fleet  at  Vigo,  he  called  the  at 
tention  of  the  Russian  ambassador  to  the  concentration  of 
the  British  fleet  at  Gibraltar  and  remarked  that  if  the  Rus- 
sian fleet  "were  allowed  to  continue  its  journey  without  call- 
ing at  Vigo,  we  might  find  ourselves  at  war  before  the  week 
was  over."^  This  language  appears  to  have  had  the  de- 
sired effect,  for  the  Russian  Government  contrived  to  let 
Admiral  Rojestvensky  know  that  he  must  stop  at  \'igo  in 
Spain. 

In  an  interview  which  a  representative  of  the  Associated 
Press  secured  from  Admiral  Rojestvensky  soon  after  the 
latter's  arrival  at  Vigo  on  October  26.  the  Russian  Admiral 
expressed  great  regret  at  the  incident,  and  explained  that 
the  "unfortunate  occurrence  was  purely  accidental."  He 
stated  that,  on  the  night  in  question,  two  tori>e(lo-boats. 
which  seemed  to  be  discharging  torpedoes,"  had  suddenly 

'  Blue  R(X)k,  ot>.  cit..  No.  lo. 

'Ibid.,  No.   12. 

'One  Ru.ssian  officer,  Prince  Kcretclli,  thoiij.;ht  he  saw  eight  torpedo 


2.2.2  THE    RUSSO-JAPANESE    WAR 

appeared  between  the  two  divisions  of  his  squadron,  and  that 
the  Russians,  supposing  them  to  be  Japanese  craft,  immedi- 
ately opened  fire.  He  denied  having  seen  either  lights  or 
fishermen,  and  was  not  aware  that  any  damage  had  been 
done.  On  the  following  day  (October  27)  Count  Lams- 
dorff  read  to  Sir  Charles  Hardinge  two  telegrams  which  had 
been  received  at  St.  Petersburg  from  Admiral  Rojestven- 
sky.  The  second  of  these  telegrams  stated  that  "the  incident 
in  the  North  Sea  was  provoked  by  two  torpedo-boats  which, 
without  lights  and  protected  by  the  obscurity,  prepared  to 
attack  the  leading  vessel  of  the  squadron.  When  the  squad- 
ron began  to  show  war  signals  and  then  to  fire,  several  other 
small  steamers  resembling  fishing  vessels  were  discovered. 
The  squadron  tried  to  spare  these  vessels,  and  stopped  firing 
as  soon  as  the  torpedo-boats  disappeared.  .  .  .  The 
squadron  could  not  render  assistance  to  the  small  steamers, 
who  might  be  suspected  of  complicity  in  view  of  their  ob- 
stinate attempts  to  break  the  line  of  our  ships.  There  were 
some  boats  which  had  not  lit  any  lights  at  all,  others  very 
late."^"     "In  the  above-mentioned  circumstances,"  claimed 

boats.  The  N.  Y.  Times  for  October  27,  1904.  In  a  subsequent  interview 
published  in  the  London  Daily  Chronicle  for  October  29,  Admiral  Ro- 
jestvensky  is  quoted  as  having  said  that  two  men  were  wounded  on  his 
flagship  during  the  firing,  and  that  one  of  his  vessels — the  Aurora — was 
so  badly  damaged  as  to  need  repairs.  As  the  Report  of  the  Commis- 
sioners (Art.  14)  observes,  "the  fact  that  the  Aurora  was  hit  .  .  . 
would  lead  to  the  supposition  that  this  cruiser,  and  perhaps  even  some 
other  Russian  vessels,  .  .  .  might  have  provoked  and  been  the  object 
of  the  first  few  shots." 

"Blue  Book,  cited  above.  No.  15.  The  first  suggestion  to  the  effect 
that  the  firing  upon  the  trawlers  was  due  to  the  actual  or  suspected 
presence  among  them  of  Japanese  torpedo-boats  was  made  by  M.  Sazo- 
now,  the  Russian  charge  d'aifaires  at  London,  to  Lord  Lansdowne  on 
October  24.  See  op.  cif.,  No.  6.  On  October  27,  1904,  Count  Lamsdorff 
assured  Sir  Charles  Hardinge  that  he  had  received  positive  proof  that 


THE    NORTH    SEA    INCIDENT  223 

Admiral  Rojestvensky,  "no  warships  could  have  acted  other- 
wise, even  in  time  of  profound  peace." 

The  publication  of  these  statements  by  the  Russian  Ad- 
miral served  rather  to  inflame  than  to  soften  the  anger  and 
exasperation  of  the  British  public.  They  were  regarded  as 
insolent  and  flippant  in  tone,  and  as  insulting  as  well  as  in- 
jurious to  the  honor  and  majesty  of  the  British  nation  in 
substance.  The  London  Times  described  them  as  a  "tissue 
of  palpable  untruths,"  and  urged  that  since  "Admiral  Ro- 
jestvensky claims  the  privilege  of  piracy  on  the  high  seas," 
it  is  "unsafe  to  suffer  him  to  be  at  large  in  command  of  war- 
ships."'^ 

The  English  were  united  in  demanding  the  punishment  of 
the  "guilty  officers"  responsible  for  this  outrageous  attack 
upon  innocent  fishermen.     Nevertheless  the  publication  of 

twenty  Japanese  officers  had  arrived  at  Hull  a  few  days  before  the  inci- 
dent, and  that  attacks  of  such  a  nature  were  being  planned.  Not  a 
particle  of  evidence  tending  to  prove  this  assertion  was  ever  produced. 
Op.  cit.,  Nos  14  and  15. 

There  is  plenty  of  evidence  which  goes  to  show  that  Admiral  Rojest- 
vensky and  other  officers  of  the  Baltic  fleet  suffered  from  extreme  nerv- 
ousness, and  that  they  were  in  great  fear  of  mines  or  of  attacks  by 
Japanese  torpedo-boats.  A  dispatch  to  the  Berlin  Lokal  Anzcigcr,  dated 
October  27,  stated  that  the  German  fishing  vessel  Sonntag  had  been  fired 
upon  off  Dogger  Bank  on  October  21.  The  master  of  the  Norwegian 
steamship  Staatol  reported  from  London  on  the  27th  that  he  was  fired  on 
by  a  Russian  ship  on  October  23  in  the  English  channel.  The  skipper  of 
the  Swedish  steamer  Aldcbaran  stated  that  his  vessel  was  chased  in  the 
Skagcrack  on  October  21  by  a  foreign  cruiser,  apparently  Russian.  See 
Chicago  Tribune  for  October  28,  1904.  It  was  also  reported  that  a  Dan- 
ish torpedo-boat  had  been  fired  upon.  The  Russian  transport  Katticliotha. 
which  fired  upon  the  Aldcbaran  and  other  unknown  vessels  on  the  even- 
ing of  October  21,  imagined  that  she  was  being  attacked  on  all  sides  by 
torpedo-boats.  See  Arts.  2-7  of  the  Report  of  the  Commissioners;  the 
Russian  recital  of  the  facts  in  Archives  Diplomatiques  for  1905.  No.  i, 
pp.  97-99;  and  the  Russian  "Observations  and  Conclusions"  in  the 
Archives  for  1905.  No.  4,  pp.  482  fF. 

"  See  London  Times,  editorial,  for  October  2"^,  kk)4. 


224  THE    RUSSO-JAPANESE    WAR 

these  very  statements  of  Admiral  Rojestvensky's,  which  so 
greatly  increased  the  indignation  of  the  British  public,  and 
which  seemed  only  to  add  fuel  to  the  fire,  paved  the  way  for 
the  peaceful  settlement  of  the  affair ;  for  the  British  Govern- 
ment could  not  fairly  ask  the  Russian  Government  to  sum- 
marily reject  the  official  report  of  its  Admiral  as  false  or  in- 
credible, and  accept  the  statements  of  "panic-stricken  fisher- 
men" without  further  inquiry. 

Immediately  upon  the  receipt  of  the  Russian  Admiral's 
explanation  of  the  affair,  Lord  Lansdowne  formulated  the 
following  demands  and  presented  them  to  the  Russian  am- 
bassador at  London :  ( i )  Before  the  Russian  fleet  leaves 
Vigo,  an  inquiry  shall  be  made  by  Russian  authorities  as  to 
those  persons  responsible  for  the  attack  on  the  fishing  fleet. 
All  those  whose  testimony  is  essential  to  the  elucidation  of 
the  facts  are  to  be  left  behind.  (2)  A  full  inquiry  shall  be 
held  at  once  as  to  the  facts  by  an  independent  court  of  an 
international  character.  It  was  suggested  that  this  com- 
mission might  be  formed  of  naval  officers  of  high  rank  rep- 
resenting the  two  Powers  concerned  and  several  others,  and 
that  it  might  be  governed  by  the  procedure  laid  down  in  Ar- 
ticles IX  to  XIV  of  the  Hague  Convention  for  International 
Commissions  of  Inquiry.  (3)  The  Russian  Government 
shall  agree  to  undertake  to  punish  adequately  any  person 
found  guilty  by  this  Commission.  Lord  Lansdowne^  ^  as- 
sured the  Russian  ambassador  that,  "if  these  demands  were 
conceded,  the  acute  character  of  the  crisis  would  disappear, 
as  the  Russian  Government  had  already  expressed  their 
deep  regret,  promised  liberal  compensation,  and  undertaken 
to  prevent  the  recurrence  of  similar  incidents." 

^Lord  Lansdowne  to  Sir  Charles  Hardinge,  Blue  Book  on  Russia, 
op.  cit.,  Nos.  17  and  19. 


THE    NORTH    SEA    INCIDENT  225 

In  response  to  these  demands  the  Russian  Government 
promptly  ordered  Admiral  Rojestvensky  to  remain  at  Vigo 
with  those  ships  and  officers  by  whom  the  North  Sea  inci- 
dent was  witnessed/^  and  on  the  following  day  (October 
28)  the  principle  of  an  International  Commission  of  In- 
quiry, "as  contemplated  by  the  Hague  Convention,"  was  ac- 
cepted by  the  Czar  in  the  form  of  a  counter-proposal.^*  "As 
for  the  question  of  punishment,  Count  Lamsdorff  stated  that 
he  could  not  admit  the  guilt  of  any  Russian  officer  until  the 
results  of  the  inquiry  were  known ;  it  would  then  be  time  to 
apportion  responsibilities  and  their  consequences  on  whom- 
soever they  might  be  found  to  fall.  He  therefore  declined 
to  discuss  this  now."^^ 

As  a  result,  however,  of  further  negotiations,  on  the  same 
day  (October  28),  between  Lord  Lansdowne  and  Count 
Benckendorff,  it  was  finally  agreed  that  any  persons  found 
guilty  by  the  International  Commission  of  Inquiry  would  be 
tried  by  the  Russian  Government  and  punished  adequately.^' 
It  was  also  agreed  that  the  Russian  Government  would  is- 

"  Ibid.,  Nos.  21,  23,  28  and  45. 

^*  Ibid.,  No.  22.  It  has  been  claimed  that  the  Czar's  counter-proposal 
was  made  without  knowledge  of  the  previous  proposition  by  Lord  Lans- 
downe ;  but  it  is  difficult  to  see  how  this  is  possible,  inasmuch  as  Count 
Lamsdorff's  proposal  was  made  before  noon  of  the  27th  and  the  Czar's 
counter-proposal  is  dated  St.  Petersburg,  October  28.  The  difference  in 
time  between  London  and  St.  Petersburg  is  not  sufficiently  great  to  ac- 
count for  such  a  delay.  Besides,  it  appears  that  Count  Lamsdorff,  at 
least,  had  knowledge  of  Lord  Lansdowne's  proposal  before  his  audience 
with  the  Czar  on  October  28.   See  Ibid.,  No.  45. 

"Sir  Charles  Hardinge  to  Lord  Lansdowne,  op.  cit.,  Nos.  23  and  45. 

"  Ibid.,  Nos.  27  and  28.  "There  never  was  any  question  in  regard  to 
apology  and  compensation,"  Count  Benckendorff  was  quoted  as  saying. 
"These  were  freely  conceded.  The  only  approach  to  a  hitch  occurred  in 
connection  with  the  question  of  guarantee  of  punishment."  See  N.  Y. 
Times  for  October  29,  1904. 


226  THE    RUSSO-JAPANESE    WAR 

sue  instructions^^  to  the  whole  Russian  fleet,  so  as  to  secure 
neutral  commerce  from  risk  of  interference  and  prevent  a 
repetition  of  such  incidents. 

Accordingly,  as  a  result  of  these  negotiations,  Premier 
Balfour  was  able  to  announce  these  terms  of  agreement  to 
the  world,  in  a  speech  at  Southampton,  on  the  evening  of 
October  28. 

Mr.  Balfour's  statement,  which  had  been  authorized  by 
Count  Benckendorff,  the  Russian  ambassador,  and  which 
presents  in  concise  form  the  results  of  the  negotiations  up  to 
this  point,  was  as  follows  :^* 

"The  Russian  Government,  on  hearing  of  the  North  Sea  in- 
cident, at  once  expressed  their  profound  regrets,  and  the  Rus- 
sian Emperor  telegraphed  to  the  King  in  the  same  sense.  The 
Russian  Government  also  promised  the  most  liberal  compen- 
sation. They  have  now  ordered  the  detention  at  Vigo  of  that 
part  of  the  fleet  ^^  which  was  concerned  in  the  incident,  in 
order  that  the  naval  authorities  may  ascertain  what  officers 
were  responsible  for  that  incident.  These  officers  and  any  ma- 
terial witnesses  will  not  proceed  with  the  fleet  on  its  voyage 
to  the  Far  East.  An  inquiry  will  be  instituted  into  the  facts. 
The  Russian  Government  consider  that  for  this  purpose  it 
would  be  useful  to  intrust  this  inquiry  to  an  International 
Commission  of  the  kind  provided  for  by  the  Hague  Conven- 
tion. Any  persons  found  guilty  by  this  tribunal  will  be  tried 
by  the  Russian  Government  and  punished  adequately.  The 
Russian  Government  undertakes  that  precautions  will  be  taken 

"  Such  instructions  were  given  to  Admiral  Rojestvensky  before  he 
left  Vigo.     See  Blue  Book,  cited  above,  No.  54. 

"  See  Nos.  27  and  28  of  the  Blue  Book,  cited  above. 

"  This  statement  was  interpreted  by  a  large  section  of  the  British  pub- 
lic and  newspapers  to  mean  that  these  vessels  would  be  detained  at  Vigo. 
As  a  result  of  this  misunderstanding,  there  was  renewed  excitement 
when  the  entire  Russian  fleet  sailed  away  from  Vigo  on  November  i, 
1904.    Only  four  Russian  officers  were  left  behind  as  witnesses. 


THE    NORTH    SEA    INCIDENT  227 

to  guard  against  the  recurrence  of  such  incidents,  and  with  this 
object  special  instructions  will  be  issued  to  the  whole  Russian 
fleet,  so  as  to  secure  neutral  commerce  from  all  risk." 

In  his  speech  upon  this  occasion,  the  British  Prime  Min- 
ister severely  criticised  and  ridiculed  Admiral  Rojestven- 
sky's  assertion  that  he  had  been  attacked  by  Japanese  tor- 
pedo-boats. He  expressed  his  disbelief  in  the  "phantom 
Japanese  ships"  in  substantially  these  terms :  "In  the  story 
of  our  fishermen  there  was  much  tragedy,  but  no  romance; 
in  the  story  of  the  Russian  Admiral  there  is  no  tragedy,  but 
I  am  driven  to  the  belief  that  there  is  much  romance.  It  is 
impossible  to  doubt  which  story  is  substantially  correct. 
.  .  .  The  Admiral's  story  is  really  an  attack  upon  our 
national  honor,  and  implies  that  we  are  not  doing  our  duty 
as  neutrals.  .  .  .  In  an  island  kingdom  like  Great 
Britain  the  nationality  of  every  craft  is  known.  It  is  incon- 
ceivable that  we  should  be  harboring  Japanese  sailors  and 
warships  without  Russia  and,  indeed,  the  whole  civilized 
world  knowing  it.  I  enter  a  most  emphatic  protest  against 
such  an  allegation." 

Referring  to  the  doctrine,  which  Admiral  Rojestvensky 
was  said  to  have  held,  to  the  effect  that  his  officers  were  jus- 
tified in  firing  on  any  boat  that  came  too  near  his  ships,  Mr. 
Balfour  said :  "One  difficulty  was  that  the  fleet  which  com- 
mitted the  outrage  was  on  its  way  to  the  illimitable  East. 
That  difficulty  has  been  gotten  over,  but  there  is  another  dif- 
ficulty— namely,  that  the  Russian  Admiral  appears  to  have 
a  theory  of  the  rights  and  duties  of  belligerent  fleets  as 
against  neutrals  that  would  really  make  the  high  seas  a  place 
of  public  danger.^" 

^  The  correspondent  of  the  London  Daily  Telegraph  at  St.  Petersburg 


228  THE    RUSSO-JAPANESE    WAR 

"Suppose  some  dark  night  a  liner  or  transport  fell  in  with 
the  Baltic  Fleet  at  Gibraltar,  where  they  intended  to  divide, 
and  approached  within  the  magic  distance,  according  to  the 
Admiral's  theory  he  would  be  justified  in  sinking  it.  The 
position  is  one  impossible  for  neutrals  to  tolerate.  A  fleet 
animated  by  that  policy  would  be  a  fleet  which  would  have 
to  be  eliminated  out  of  existence  if  civilized  commerce  is  to 
pursue  its  way  unimpeded."" 

In  the  negotiations  which  followed,  regarding  the  organi- 
zation and  scope  of  the  Commission  of  Inquiry  thus  agreed 
upon,  there  was  only  one  question  which  presented  any  se- 
rious difficulty.  Lord  Lansdowne  insisted  from  the  first 
that  the  Commission  should  consider  and  pass  upon  the  "de- 
gree of  blame"  as  well  as  the  "responsibility"  attached  to 
those  involved  in  the  attack  upon  the  fishing  fleet."  Article 
II  of  the  British  draft  of  the  proposed  agreement,  submitted 
on  October  31,  provided  that  the  Commission  "shall  inquire 
into  and  report  upon  all  the  circumstances  attending  the  dis- 
aster in  the  North  Sea,  and  particularly  as  to  where  the  re- 
made the  following  statement  to  his  journal  in  a  dispatch,  dated  October 
28,  1904:  "I  am  enabled  to  state  categorically  that  Admiral  Rojest- 
vensky  received  from  the  Russian  Admiralty  a  code  of  secret  instruc- 
tions, not  only  authorizing  but  obliging  him  to  fire  upon  all  ships  ap- 
proaching too  close,  or  otherwise  arousing  suspicion." 

"  Telegraphic  summary  of  Mr.  Balfour's  speech  in  the  New  York 
Times  for  October  29,  1904.  For  a  complete  report  of  this  remarkable 
speech,  see  London  Times  (weekly  ed.)  for  November  4,  1904.  Mr.  Bal- 
four attributed  this  wise  provisional  solution  of  the  affair  to  the  wisdom 
of  the  Russian  Government,  which  "had  shown  an  enlightened  desire 
that  truth  and  justice  should  prevail,"  and  to  the  Czar,  who  "had  shown 
himself  an  enlightened  judge  of  what  was  right  in  the  matter  as  between 
nation  and  nation ;"  but  it  was  generally  believed  at  the  time  that  this 
happy  outcome  was  largely  due  to  the  unceasing  activity  and  good  offices 
of  M.  Delcasse,  the  French  Minister  of  Foreign  Affairs,  and  of  M. 
Cambon,  the  ambassador  for  France  at  the  court  of  St.  James. 

^  See  especially  Nos.  41  and  43  of  the  Blue  Book,  cited  above. 


THE    NORTH    SEA    INCIDENT  229 

sponsibility  for  the  disaster  lies,  and  the  degree  of  blame 
which  attaches  to  those  upon  whom  the  responsibility  is 
found  to  rest."^^  Count  Lamsdorff  objected  to  the  wording 
of  this  article  on  the  ground  that  "it  assumed  the  culpability 
of  Russian  officers."^*  He  said :  "It  is  the  work  of  the 
Commission  of  Inquiry  alone  to  determine  the  responsibility 
for  the  incident,  and  he  could  not  admit  the  responsibility 
or  guilt  of  the  officers  detached  until  proved  by  that  body."^" 

In  spite  of  this  apparent  difference  of  opinion,  Count 
Lamsdorff  announced,  on  November  4,  that  the  Russian 
Government  had  accepted  the  six  articles  of  the  British 
draft  proposals  "integrally."^^ 

The  negotiations  leading  up  to  the  establishment  of  the 

"  See  inclosure  in  No.  43,  p.  27. 

"  Ibid.,  No.  56. 

^°  No.  57.  This  difference  of  opinion  appears,  as  Lord  Lansdowne 
pointed  out  in  No.  58,  to  have  been  a  mere  "verbal  misunderstanding." 
One  would  think  it  might  easily  have  been  removed  by  adding  to  Art.  II, 
cited  above,  the  phrase  "if  blame  there  be."  As  Lord  Lansdowne  said: 
"The  International  Tribunal  (  !)  alone  can  determine  whether  responsi- 
bility is  equivalent  to  guilt  or  is  in  itself  deserving  of  punishment."  He 
added :  "We  do  not  regard  this  as  necessarily  the  case,  but  in  our  view 
the  persons  who  are  responsible  are  those  on  whom  blame  would  fall,  if 
blame  there  was." 

The  Russian  view  appears  to  have  been  that  the  officers  detached  at 
Vigo  were  to  be  regarded  as  mere  witnesses,  and  there  was  to  be  no 
presumption  of  blame  or  responsibility;  the  English  view  was  that  those 
implicated  in  or  responsible  for  the  incident  were  to  be  detached  as  well 
as  those  who  might  be  regarded  as  mere  witnesses.  Lord  Lansdowne 
admitted,  however,  that  "since  those  officers  who  were  actually  impli- 
cated would  be  in  the  best  position  to  give  evidence,  the  selection  of  cer- 
tain individuals  as  witnesses  did  not  exclude  the  possibility  of  their 
having  been  responsible  in  the  matter."   See  No.  57. 

■°  Nos.  59,  60,  and  65.  Three  additional  articles,  proposed  by  Count 
Lamsdorff  on  November  5,  were  accepted  by  the  Russian  Government 
on  November  8.  See  Nos.  62,  67  and  68.  They  dealt  with  the  appoint- 
ment of  Legal  Assessors  and  Agents  to  assist  the  Commission  in  their 
deliberations. 


230  THE    RUSSO-JAPANESE    WAR 

Commission  of  Inquiry  seemed  thus  happily  ended  when 
Sir  Charles  Hardinge  received,  on  November  12,  from 
Count  Lamsdorff  the  French  translation  of  a  Russian  draft 
of  the  proposed  agreement,  drawn  up  (so  Count  Lamsdorff 
assured  the  British  ambassador)  in  accordance  with  the  nine 
articles  of  the  English  text.  He  explained,  however,  that, 
"besides  corrections  of  an  editorial  character,"  Article  II  of 
the  agreement  had  been  "worded  in  somewhat  altered  form 
as  compared  with  the  English  text."^^  But  it  was  found 
that  besides  certain  changes  in  the  preamble, ^^  the  phrase 
"degree  of  blame"  had  been  omitted  in  the  new  Russian 
draft. 

The  British  ambassador  at  once  protested,  reminding 
Count  Lamsdorff  of  the  integral  acceptance  by  the  Russian 
Government  of  the  English  draft^^  on  November  4,  and 
awaited  instructions  from  London.  On  November  14  he 
was  informed  by  Count  Lansdowne  that  the  British  Gov- 
ernment could  not  now  "consent  to  a  controversy  as  to  the 
form  of  the  Agreement,"  and  that  it  desired  to  adhere  to  the 
original  text  as  proposed  by  Great  Britain  and  agreed  to  by 
Russia.^** 

The  reason  given  by  Count  Lamsdorff  for  the  proposed 
change  was  that,  "after  consultation  with  the  best  Russian 
jurists,  M.  de  Martens  at  their  head,  he  had  come  to  the  con- 
clusion that  the  original  text  of  Article  II  was  contrary  to 

"  No.  n- 

^  So,  e.  g.,  the  English  draft  of  the  preamble  spoke  of  referring  the 
question  in  dispute  to  an  International  Commission  of  Inquiry  analogous 
to  that  provided  for  by  the  Hague  Convention.  The  Russian  draft  sub- 
stituted the  word  conformably  for  analogous.  For  the  text  of  the  Rus- 
sian draft,  see  inclosure  2  of  No.  79. 

^  Nos.  73  and  79. 

""  No.  75- 


THE    NORTH    SEA    INCIDENT 


231 


the  sense  of  the  stipulation  of  the  Hague  Convention  relat- 
ing to  the  appointment  of  a  Commission  of  Inquiry  ;"^^  but, 
as  Lord  Lansdowne  pointed  out,  the  Commission  contem- 
plated by  the  British  Government  was  not  identical  with, 
but  ''analogous"  to  those  recommended  by  the  Hague  Con- 
ference.^'' Count  Lamsdorff  then  explained  that  the  hitch 
in  the  negotiations  had  been  due  to  a  misunderstanding," 
and  he  placed  no  further  impediments  in  the  way  of  a  final 
agreement.  The  Declaration  of  St.  Petersburg  (as  the 
agreement  providing  for  the  organization  and  scope  of  the 
International  Commission  of  Inquiry  to  investigate  the 
North  Sea  Incident  was  called)  was  signed  by  Sir  Charles 
Hardinge  and  Count  Lamsdorflf  on  November  25,  1904.^* 

As  eventually  adopted,  the  troublesome  Article  II  provid- 
ed that  "the  Commission  shall  inquire  into  and  report  on  all 
the  circumstances  relative  to  the  North  Sea  incident,  and 
particularly  on  the  question  as  to  where  the  responsibility 
lies,  and  the  degree  of  blame  attaching  to  the  subjects  of  the 
two  High  Contracting  Parties  or  to  the  subjects  of  other 
countries  in  the  event  of  their  responsibility  being  estab- 

"  No.  76. 

1^0.77. 

"  Nos.  82  and  88.  This  misunderstanding  consisted  in  the  fact  that  the 
Russian  Government  had  supposed  that  the  stipulation  of  the  Hague 
Convention  was  to  constitute  the  sole  basis  of  the  agreement,  whereas 
the  British  Government  desired  to  give  the  Commission  of  Inquiry  more 
extended  powers  than  those  recommended  by  the  Hague  Conference. 

In  accepting  the  final  draft  proposed  by  Russia,  Great  Britain  stipu- 
lated that  "should  the  Instrument  about  to  be  signed  prove  to  be  in  any 
way  inconsistent  with  the  provisions  of  the  Hague  Convention  (Articles 
IX  to  XIV),  the  Articles  of  the  Instrument  shall  be  held  to  override 
those  of  the  Hague  Convention."   No.  84  and  inclosure  in  No.  90. 

"  For  the  French  and  English  te.xts  of  this  Declaration,  see  Blue  Book, 
cited  above,  inclosure  i  in  No.  96.  For  the  English  text,  see  appendix  to 
the  Blue  Book. 


232  THE    RUSSO-JAPANESE    WAR 

lished  by  the  inquiry."  Article  IX  of  the  Hague  Conven- 
tion for  the  Peaceful  Adjustment  of  International  Differ- 
ences provides  that  ''in  differences  of  international  nature 
involving  neither  honor  nor  vital  interests,  and  arising  from 
a  difference  of  opinion  on  matters  of  fact,  the  Signatory 
Powers  recommend  that  parties  who  have  not  been  able  to 
come  to  an  agreement  by  diplomatic  methods  should,  as  far 
as  circumstances  allow,  institute  an  International  Commis- 
sion of  Inquiry  to  facilitate  a  solution  of  the  differences  by 
elucidating  the  facts,  by  means  of  an  impartial  and  conscien- 
tious investigation."^^  Article  XIV  of  the  Convention  pro- 
vides that  "the  report  of  the  International  Commission  of 
Inquiry  shall  be  limited  to  a  statement  of  the  facts,  and  shall 
in  no  way  have  the  character  of  an  arbitral  award."^^ 

A  comparison  of  these  texts,  reinforced  by  a  study  of  the 
negotiations,  make  it  clear  that  the  powers  granted  to  the 
International  Commission  of  Inquiry  for  the  investigation  of 
the  North  Sea  Incident  were  much  broader  than  those  con- 
templated by  the  Hague  Conference.  The  Declaration  of 
St.  Petersburg  imposed  upon  the  Commissioners  the  duty 
of  determining  the  question  of  responsibility  and  apportion- 
ing the  degree  of  blame  attached  to  those  responsible  for  the 
attack  on  the  Hull  fishing  fleet  as  well  as  "the  task  of  eluci- 
dating by  means  of  an  impartial  and  conscientious  investi- 
gation the  questions  of  fact  connected  with  the  incident, "^^ 

'"*  See  Holls,  Peace  Conference,  pp.  203  and  387. 

^^  Ibid.,  pp.  219  and  389. 

^'  From  the  preamble  to  the  St.  Petersburg  Declaration.  See  Appendix 
of  Blue  Book.  Lord  Lansdowne  (No.  78)  claimed  that  the  "question  of 
responsibility  and  question  of  blame  are  both  questions  of  fact."  Count 
Lamsdorfif  (No.  yy)  appears  to  have  held  that  the  "question  of  responsi- 
bility is  a  question  of  fact,  but  that  the  question  of  blame  is  not." 


THE    NORTH    SEA    INCIDENT  233 

and  the  report  of  the  Commission  certainly  had  more  or  less 
of  the  character  of  "an  arbitral  award."^* 

Prior  to  the  meeting  of  the  Commission  of  Inquiry  in 
Paris  in  January,  1905,  separate  inquests  or  investigations 
were  made  by  Russian  and  British  authorities.  There  ap- 
pears to  have  been  an  inquiry  by  the  Russian  officials  at 
Vigo  in  the  latter  part  of  October,  1904,  and,  in  addition 
to  the  Coroner's  inquest  at  Hull,  early  in  November,  the 
Board  of  Trade  conducted  an  inquiry  at  Hull^®  on  Novem- 
ber 15-19,  1904.*"  The  findings  of  these  various  inquests 
or  inquiries  supplied  the  Russian  and  British  Governments 
with  the  material  for  their  respective  "Recitals  of  Facts,"* ^ 
submitted  to  the  International  Commission  of  Inquiry. 

The  International  Commission  of  Inquiry  for  the  investi- 

^  M.  Mandelstam  (see  Revue  Gcncrale  de  Droit  International  Public 
for  Mars-Juin  and  Juillet-Aout,  1905,  pp.  178  ff.  and  pp.  413  ff.)  is  of 
the  opinion  that  the  Declaration  of  St.  Petersburg,  in  combining  the 
functions  of  a  court  of  arbitration  with  those  of  a  court  of  inquiry,  cre- 
ated a  "hybrid"  which  should  not  serve  as  a  model  in  future  conventions 
of  this  sort. 

In  his  Southampton  speech  Mr.  Balfour  had  asserted  that  the  Interna- 
tional Commission  of  Inquiry  about  to  be  established  by  Great  Britain 
and  Russia  "had  nothing  to  do  with  arbitration."  It  was,  said  he,  insti- 
tuted merely  *'to  find  out  the  facts."  Such  may  have  been  the  intention 
of  the  British  Government  at  that  time,  as  it  certainly  was  of  the  Rus- 
sian Government;  but  the  Commission  of  Inquiry  as  instituted  by  the 
Declaration  of  St.  Petersburg  was  given  the  functions  of  a  court  of 
arbitration  as  well  as  those  of  a  commission  of  inquiry. 

^°  For  the  proceedings  and  findings  of  the  Board  of  Trade  inquiry,  see 
London  Times  (weekly)  for  November  18  and  25,  1904,  pp.  742  and  p. 
760.'  The  Commissioners  appointed  to  conduct  the  inquiry  were  Sir 
Admiral  Cyprian  Bridge  and  Mr.  Butler  Aspinall.  They  were  in- 
structed to  report  upon:  (i)  the  facts;  (2)  upon  the  quantum  of  the 
damage  of  whatever  kind,  and  as  to  compensation. 

*"  A  later  session  for  the  consideration  of  claims  for  compensation  was 
held  on  December  19. 

"  For  the  Russian  and  British  "Recitals  of  Facts."  see  Archives  Diplo- 
ntatiques  for  1905.  No.  i,  pp.  97-102. 


234  THE    RUSSO-JAPANESE    WAR 

gation  of  the  North  Sea  Incident  met  in  Paris  on  January 
9,  1905.*^  It  was  composed  of  five  naval  officers  represent- 
ing the  Governments  of  Great  Britain,  Russia,  the  United 
States,  France,  and  Austria.*^  The  sessions  from  January 
9  to  January  20  were  occupied  in  the  elaboration  and  adop- 
tion of  rules  of  procedure.**  Thirteen  public*^  sessions 
from  January  25  to  February  2  (inclusive)  were  occupied 
in  the  examination  of  witnesses,  and  on  February  13  certain 

*'  It  had  met  and  held  its  first  session  on  December  22,  1904,  but  this 
was  merely  for  the  verification  of  powers  and  the  selection  of  the  fifth 
member  of  the  Commission  in  accordance  with  Art.  i  of  the  Declaration 
of  St.  Petersburg. 

*^  These  were  Vice- Admiral  Doubassoflf  for  Russia,  Vice-Admiral 
Beaumont  for  Great  Britain,  Rear  Admiral  Davis  for  the  United  States, 
Vice-Admiral  von  Spaun  for  Austro-Hungary,  and  Admiral  Fournier 
of  the  French  navy  who  presided.  Each  of  the  two  High  Contracting 
Parties  was  represented  by  a  legal  Assessor  "to  advise  the  Commission- 
ers," and  by  an  Agent  "officially  empowered  to  take  part  in  the  labors 
of  the  Commission."  See  Art.  i  of  the  Declaration.  It  appears  from 
the  Correspondence  (No.  68)  that  the  "Agents"  were  intended  "merely 
to  act  as  intermediaries  between  the  Commission  and  the  Governments 
concerned."  In  reality  they  acted  as  prosecuting-attorneys  for  their  re- 
spective governments  and  interpellated  the  witnesses.  They  were  as- 
sisted by  counsel  and  advocates,  and  seem  to  have  played  a  much  more 
important  role  than  the  "Assessors."  See  Mandelstam  in  article  cited 
above,  pp.  362-372. 

**  For  the  Reglement  or  rules  of  procedure  governing  the  work  of  the 
Commission,  see  the  Archives  Diplomatique s  (t.  93)  for  1905,  pp.  102- 
107,  and  the  article  by  Mandelstam,  cited  above,  in  the  Revue  Generate 
D.  I.  P.  for  1905,  pp.  357-360.  For  the  minutes  or  reports  of  the  official 
proceedings  of  the  sessions,  see  Archives  Diplomatiques  (t.  94)  for  1905, 
pp.  450-496. 

*'  With  reference  to  the  degree  of  publicity,  the  sessions  of  the  Com- 
mission were  of  three  kinds:  (i)  public,  i.  e.,  open  to  a  certain  number 
of  outsiders,  e.  g.,  newspaper  correspondents  (such  were  all  sessions  de- 
voted to  the  reading  of  the  exposition  of  facts,  of  conclusions,  and  the 
report,  as  also  the  interpellation  of  witnesses)  ;  (2)  not  public,  i.  e., 
open  only  to  persons  in  any  way  connected  with  the  Commission  (such 
were  all  sessions  held  for  purposes  of  deliberation)  ;  (3)  sessions  in  the 
Council  Hall,  in  which,  in  principle,  only  the  Commissioners  and 
Assessors  participated.    See  Mandelstam  in  article  cited  above,  p.  374. 


THE    NORTH    SEA    INCIDENT  235 

"Observations  and  Conclusions"  were  presented  to  the  Com- 
mission by  the  Agents  of  the  British  and  Russian  Govern- 
ments. 

The  Agent  of  the  British  Government  contended  that  the 
evidence  of  the  witnesses  and  documents  presented  to  the 
Commission  had  established  the  following  "Conclusions"  : 

"i.  That  on  the  night  of  October  21-22,  1904,  there  was 
in  fact  no  torpedo-boat  or  torpedo-boat  destroyer  present 
among  the  British  trawlers  or  in  the  neighborhood  of  the  Rus- 
sian fleet;  and  that  the  Russian  officers  were  mistaken  in  be- 
lieving that  vessels  of  this  kind  were  present  or  close  by  and 
that  they  attacked  or  intended  to  attack  the  Russian  fleet. 

"2.  (a)  That  there  was  no  sufficient  reason  to  justify  the 
opening  of  the  fire;  (b)  that,  once  opened,  there  was  a  failure 
to  direct  and  control  the  firing  so  as  to  avoid  damage  to  the 
fishing  fleet;  (c)  that  the  fire  upon  the  fishing  fleet  was  con- 
tinued for  an  unreasonable  length  of  time. 

"3.  That  those  on  board  the  Russian  fleet  should  have  gone 
to  the  aid  of  the  wounded  and  the  damaged  vessels. 

"4.  That  no  fault  whatever  was  committed  by  those  on 
board  the  trawlers  or  by  those  in  charge  of  them." 

The  "Conclusions"  drawn  from  the  evidence  by  the  Agent 
of  the  Russian  Government  were  as  follows : 

"i.  That  the  firing  of  the  Russian  squadron  on  the  night 
of  October  21-22,  1904,  was  ordered  and  executed  in  legitimate 
accomplishment  of  the  military  duties  of  the  Commander  of 
the  squadron. 

"2.  That,  as  a  consequence,  no  responsibility  can  possibly 
rest  upon  Admiral  Rojestvensky  or  any  of  his  subordinates."*' 

**  For  the  British  and  Russian  "Observations  and  Conchisions,"  see 
Archives  Diplomatiques  (t.  94)  for  1905.  pp.  474-489.  For  a  good  Eng- 
lish translation  of  the  "Conclusions,"  see  B.  H.  Conner  in  the  Green  Bag 
for  June,  1905,  Vol.  XVII,  pp.  362-63. 


236  THE    RUSSO-JAPANESE    WAR 

During  the  inquest  Russia  endeavored  to  justify  the  con- 
duct of  her  Admiral  and  officers  by  trying  to  show :  ( i ) 
that  the  firing  was  caused  by  the  rapid  approach,  at  a  dis- 
tance dangerous  to  the  squadron,  of  two  actual  torpedo- 
boats,  which  all  of  the  Russian  officers  present  at  the  inquest 
claimed  to  have  seen;  (2)  that  the  firing  was  exclusively 
directed  upon  these  torpedo-boats,  and  that  the  British 
trawlers  were  merely  hit  in  consequence  of  a  series  of  in- 
evitable accidents;*^  (3)  that  everything  possible  was  done 
by  the  squadron  to  lessen  the  risks  which  the  trawlers  in- 
evitably ran  as  a  result  of  the  firing  necessitated  by  the  ap- 
proach of  the  said  torpedo-boats.  The  Russians  laid  great 
stress  upon  the  excellent  quality  and  "high  moral  value"  of 
their  evidence,  which  was  produced  by  witnesses  who  were 
high  naval  officials,  and  who  were  supposed  to  speak  from 
direct  personal  knowelge  of  all  the  facts.  They  pointed  to 
the  purely  negative  character  of  the  British  evidence**  as  to 
the  absence  of  the  torpedo-boats,  as  compared  with  the  posi- 
tive evidence  of  professional  experts  who  testified,  one  and 
all,  to  the  presence  of  such  vessels.  The  fact  that  these  wit- 
nesses were  also  interested  appears  to  have  been  overlooked. 

The  Report  of  the  International  Commission  of  Inquiry 
was  rendered  on  February  25,  1904.  The  majority  of  the 
Commissioners  expressed  the  opinion  that  "the  responsibil- 

^'This  claim  does  not  well  accord  with  Admiral  Rojestvensky's  dis- 
patch, cited  above.  He  had  accused  the  trawlers  of  "obstinate  attempts" 
to  break  through  his  line. 

^®  This  evidence  was  of  two  kinds :  that  of  the  fishermen  and  that  of 
the  Governments  of  France,  Germany,  Denmark,  Holland,  Norway  and 
Sweden,  and  Japan,  all  of  which  denied  having  any  knowledge  of  the 
acquisition  or  equipment  of  any  Japanese  torpedo-boats  in  the  ports  of 
these  countries,  or  of  the  existence  of  such  vessels  in  the  vicinity  of 
Dogger  Bank  on  the  night  in  question.  See  Blue  Book  on  Russia,  No.  2 
(1905)  passim. 


THE    NORTH    SEA    INCIDENT  2^^ 

ity  for  the  action  and  the  results  of  the  fire  to  which  the 
fishing  fleet  was  exix)sed  are  to  be  attributed  to  Admiral 
Rojestvensky;"'"  and  since  it  was  unanimously  agreed  that 
the  trawlers  had  committed  no  hostile  act,  and  since  it  was 
the  opinion  of  the  majority  that  there  were  no  torpedo-boats 
either  among  the  trawlers  or  anywhere  near,"  the  opening 
of  fire  by  Admiral  Rojestvensky  was  not  justifiable.'"'  But. 
on  the  other  hand,  the  majority  of  the  Commissioners  con- 
sidered the  precautions  taken  and  the  standing  orders  issued 
by  the  Russian  Admiral  "in  no  way  excessive  in  time  of  war, 
and  particularly  in  the  circumstances";"'  and  they  unani- 
mously recognized  that  he  "personally  did  everything  he 
could,  from  beginning  to  end  of  the  incident,  to  prevent 
trawlers,  recognized  as  such,  from  being  fired  upon  by  the 
squadron.""  They  also  unanimously  recognized  that  "after 
the  circumstances  which  preceded  the  incident  and  those 
which  produced  it,  there  was,  at  the  cessation  of  the  fire,  suf- 
ficient uncertainty  with  regard  to  the  danger  to  which  the 
division  of  vessels  was  exposed  to  induce  the  Admiral  to 
proceed  on  his  way.""  In  conclusion,  the  Commissioners 
declared  that  their  findings  were  "not.  in  their  opinion,  of 

*•  See  Art.  XI,  §  6,  of  the  Report. 

"Art.  13,  §  4.  The  majority  also  held  "the  time  during  which  the  firing 
lasted  on  the  starboard  side"  to  have  been  "longer  than  was  necessary." 
§  I,  Art.  15. 

"  §  4  of  Art.  8.  These  standing  orders  of  the  Admiral  "laid  down  that 
the  officer  of  the  watch  was  authorized  to  open  fire  in  case  of  an  evident 
and  imminent  attack  by  torpedo-boats."    §  2,  Art.  8. 

"Art.  15.  §  3- 

"  §  2  of  .'\rt.  16.  The  majority  of  the  Commissioners  regretted,  how- 
ever, that  "Admiral  Rojestvensky,  in  passing  the  straits  of  Dover,  did 
not  take  care  to  inform  the  authorities  of  the  neighboring  Maritime 
Powers  that,  as  he  had  been  led  to  open  fire  near  a  group  of  trawlers, 
these  boats,  of  unknown  nationality,  stood  in  need  of  assistance."  Ibid., 
§3- 


238  THE    RUSSO-JAPANESE    WAR 

a  nature  to  cast  any  discredit  upon  the  military  qualities  or 
humanity  of  Admiral  Roj  estvensky,  or  of  the  personnel  of 
his  squadron."'* 

The  North  Sea  Incident  was  finally  closed  on  March  9, 
1905,  by  the  payment  to  Lord  Lansdowne  by  the  Russian 
ambassador  of  £65,000  as  indemnity  or  compensation  due  to 
the  Hull  fishermen. 

The  Report  of  the  North  Sea  Commission  was  severely 

"Art.  17.  The  Commissioners  found  that  the  firing  was  due  to  the 
"extreme  precautions"  taken  by  the  Russian  vessels  "in  order  that  they 
might  be  fully  prepared  to  meet  a  night  attack  by  torpedo-boats,  either 
at  sea  or  at  anchor."  They  declared  that  "these  precautions  seemed  to 
be  justified  by  the  numerous  reports  received  from  the  agents  of  the 
Imperial  (Russian)  Government  on  the  subject  of  hostile  attempts  to  be 
feared,  which  in  all  likelihood  would  take  the  form  of  attacks  by  torpedo- 
boats."  See  Report,  Art.  2,  §§  2  and  3.  They  suggested  that  the  firing 
may  have  been  incidentally  caused  by  the  "accidental  delay"  of  the  Rus- 
sian transport  Kamchatka,  which,  having  been  "obliged  to  slacken  speed 
in  consequence  of  damage  to  her  engines,"  was  "left  behind  and  isolated 
about  ten  miles  to  the  rear  of  the  squadron." 

Towards  8  p.  m.  of  October  21  the  Kamchatka,  "doubtless  in  conse- 
quence of  the  anxiety  inspired  in  the  circumstances  of  the  moment,  the 
damage  to  her  engines,  and  her  small  fighting  value,"  opened  fire  upon 
the  Swedish  vessel  Aldeharan  and  other  unknown  vessels.  At  8:45  P.  M. 
the  Commander  of  the  Kamchatka  sent  a  message  by  wireless  telegraphy 
to  Admiral  Roj  estvensky  regarding  this  encounter,  stating  that  he  was 
"attacked  on  all  sides  by  torpedo-boats."  The  Russian  Admiral,  who 
was  at  that  time  about  fifty  miles  ahead  of  the  Kamchatka,  was  thus  led 
to  fear  an  attack  by  these  alleged  torpedo-boats  upon  his  division, 
and  he  accordingly  signaled  his  ships  at  about  10:00  p.  m.  "to  re- 
double their  vigilance  and  look  out  for  an  attack  by  torpedo-boats." 
The  expected  attack  occurred  towards  1 130  a.  m.  See  Report  of 
the  Commissioners,  Art.  2-9.  The  majority  of  the  Commissioners  ob- 
served that  "they  did  not  have  sufficiently  precise  details  to  determine 
what  was  the  object  fired  on  by  the  (Russian)  vessels."  Art.  13,  §  4. 
The  British  Agent  (see  "Observations"  in  Archives  Diplomatiques  (t. 
94)  for  1905,  p.  478)  presented  weighty  arguments  in  favor  of  the 
British  view  that  the  vessels  first  seen  and  fired  upon  were  the  Russian 
cruisers  Aurora  and  Dmitri-Donskoi.  The  Aurora  was  hit  by  several 
shots. 


THE    NORTH    SEA    INCIDENT  239 

criticised  in  some  quarters  on  the  ground  that  it  was  a 
"Scotch  verdict."  It  was  said,  e.  g.,  that  the  Commission 
had  found  that,  "though  the  Russian  Admiral  was  utterly 
unjustified  in  turning  his  guns  loose  on  the  helpless  fisher- 
men, and  that  he  acted  in  an  extremely  reprehensible  man- 
ner, his  conduct  was  characterized  by  discretion  and  valor, 
and  the  court  is  unanimous  in  holding  that  he  is  a  fine  fellow 
and  a  credit  to  the  squadron  and  the  Russian  nation. "°'  It 
was  intimated  that  the  decision  of  the  Commission  was 
actuated  by  a  desire  to  conciliate  both  parties  rather  than 
to  mete  out  justice,  or  that  they  wished  to  avoid  the  imposi- 
tion of  such  blame  upon  the  Russian  Admiral  as  would  ren- 
der his  trial  and  punishment  by  Russia  necessary. 

Such  criticism  appears  to  have  been  unjust.  As  our  fore- 
most American  authority  on  International  Law,**®  John  Bas- 
sett  Moore,  has  well  said :  "It  is  not  improbable  that,  if  the 
Commissioners  had  been  lawyers  instead  of  admirals,  they 
would  have  avoided  any  ground  for  such  a  surmise.  Had 
they  been  lawyers,  they  probably  would  have  brought  out 
more  clearly  the  distinction,  which  doubtless  was  working 
in  their  minds,  between  justification  in  fact  and  apparent 
justification.  They  found  that  the  attack  was  not  in  fact 
justified,  and  from  this  finding  there  arose  an  obligation  to 
make  compensation.  But  when  we  pass  from  the  domain  of 
civil  to  that  of  penal  law,  when  we  pass  from  the  question 
of  making  compensation  for  a  wrongful  act  to  that  of  under- 
going personal  punishment  for  it,  the  element  of  intent  be- 
comes material,  and  apparent  rather  than  actual  justification 

"  See  editorial  in  N.  Y.  Press  for  February  26,  1905. 

"  For  the  citation  which  follows,  see  the  report  of  the  eleventh  Annual 
Meeting  of  the  Mohonk  Lake  Conference  on  International  Arbitration 
for  1905,  p.  150. 


240  THE    RUSSO-JAPANESE    WAR 

or  excuse  becomes  the  test.  The  Commissioners  therefore 
are  not  chargeable  with  inconsistency,  because,  while  they 
found  that  the  firing  was  not  justifiable,  they  also  held  that 
Admiral  Rojestvensky  had  not  incurred  liability  to  pun- 
ishment." It  would  thus  seem  that  the  decision  of  the  Com- 
missioners amounted  to  a  finding  that,  although  the  Rus- 
sian Admiral  was  responsible  for  the  firing,  he  was  in  no 
wise  chargeable  with  such  a  kind  or  degree  of  blame  as 
would  render  him  liable  to  trial  and  punishment  at  the  hands 
of  the  Russian  Government." 

The  institution  of  the  North  Sea  Commission  and  its 
successful  working  under  such  trying  circumstances  must 
be  pronounced  a  great  victory  for  the  principle  of  interna- 
tional arbitration.  Although  nominally  called  an  Interna- 
tional Commission  of  Inquiry  analogous  to  those  provided 
for  by  Articles  9-14  of  the  first  Hague  Convention,  it  really 
combined  the  functions  of  an  International  Court  or  Tri- 
bunal of  Justice  with  those  of  a  Commission  of  Inquiry 
and,  in  accordance  with  the  purposes  for  which  it  was  or- 
ganized, it  passed  upon  the  questions  of  "responsibility" 
and  "degree  of  blame"  as  well  as  inquired  into  and  reported 
upon  the  facts  or  circumstances  of  the  case.  It  was  in  fact 
an  arbitration  sui  generis,  of  a  kind  new  and  unprecedented 
in  the  history  of  international  relations ;  for  it  was  not  only 
applied,  at  a  time  of  great  excitement,  to  a  question  affecting 
the  national  honor  and  vital  interests  of  both  parties  to  the 
dispute,  but  it  introduced  into  our  administration  of  interna- 
tional justice  a  new  method  of  procedure  in  cases  of  alleged 
violations  of  the  law  of  nations.  It  has  set  a  precedent  for 
the  establishment  of  tribunals  combining  the  functions  of 

"  See  Mandelstam  in  Revue  Generale  de  D.  I.  P.  for  1905,  p.  407,  for 
a  corroborative  view. 


THE    NORTH    SEA    INCIDENT  24I 

an  International  Court  of  Arbitration  with  those  of  a  Court 
of  Inquiry  for  the  investigation  and  trial  before  the  bar  of 
the  public  opinion  of  the  world,  of  those  charged  with  inter- 
national crimes  and  misdemeanors  or  serious  violations  of 
International  Law.  It  is  true  that  the  accused  in  this  case, 
if  found  guilty,  were  to  have  been  punished  by  a  national 
penal  sanction;  but  the  power  of  imposing  an  international 
censure  was  vested  in  the  North  Sea  Commission  by  the 
Declaration  of  St.  Petersburg,  and,  although  the  organiza- 
tion and  procedure  of  the  Commission  may  be  open  to  criti- 
cism^^ in  matters  of  detail,  there  is  no  valid  reason  why  the 
principles  involved  in  this  case  should  not  be  given  even  a 
more  extended  application. 

For  the  finding  itself  there  seem  to  be  no  precedents^' 

"  For  such  criticism,  see  the  articles  by  Mandelstam,  cited  above. 
This  author  recognizes  the  great  service  which  the  Declaration  of  St. 
Petersburg  has  rendered  to  arbitration  by  "the  extension  of  its  domain 
to  infractions  of  the  law  of  nations"  (see  p.  415  of  the  Revue  cited 
above),  but  he  considers  the  organization  and  procedure  of  the  North 
Sea  Commission  to  have  been  so  defective  that  he  hopes  it  may  '"not 
serve  as  a  model  for  future  Commissions  of  Inquiry."  He  especially 
objects  to  combining  the  functions  of  a  Court  or  Tribunal  of  Arbitra- 
tion with  those  of  a  Commission  of  Inquiry,  but  on  what  appear  to  us 
to  be  purely  theoretical  grounds.  The  best  answer  to  such  an  objection 
is  to  be  found  in  the  successful  working  of  such  an  institution  under 
such  trying  circumstances  as  surrounded  the  North  Sea  incident.  Not 
only  was  a  great  European  war  thus  narrowly  averted,  but  the  questions 
involved  were  settled  once  for  all.  Had  the  Russian  view  for  which 
Mr.  Mandelstam  contends  prevailed  and  the  scope  of  the  Commission 
been  restricted  to  an  inquiry  into  the  facts  and  to  the  determination  of 
the  question  of  "responsibility,"  the  question  of  "degree  of  blame"  or 
guilt  would  have  remained  open  as  a  possible  source  of  future  strife 
and  contention  between  the  two  countries.  It  is  a  point  worth  consider- 
ing, however,  whether  in  future  disputes  of  this  kind  the  interests  of 
neutrals  would  not  receive  more  consideration  at  the  hands  of  a  Com- 
mission of  international  lawyers  or  jurists  rather  than  at  those  of  ad- 
mirals or  generals. 

"Among  the  many  supposedly  analogous  cases,  such  as  the  Maine, 


242  THE   RUSSO-JAPANESE    WAR 

Strictly  in  point.  Under  the  peculiar  circumstances  of  the 
case  and  in  principle  the  decision  of  the  Commissioners 
seems  sound,  and  we  have  no  inclination  to  find  fault  with 
it.  It  is  to  be  hoped,  however,  that  it  will  not  be  distorted 
into  a  precedent  for  the  support  of  a  theory  of  belligerent 
as  against  neutral  rights  on  the  high  seas,  which  appears  to 
have  been  entertained  in  high  quarters  during  the  Russo- 
Japanese  War. 

Count  Cassini  is  reported  to  have  said :   "A  fleet  is  like  a 
fortress,  and  when  the  sentinel  calls  out  to  the  stranger  to 

Virginius,  Caroline,  etc.,  cited  by  Smith  and  Sibley  in  their  work  (see 
pp.  295-319),  there  are  only  two  which  seem  to  have  any  real  bearing 
upon  the  main  points  raised  by  the  North  Sea  Incident.  These  are  the 
cases  of  the  Marianne  Flora  (ii  Wheaton  i),  decided  in  1826,  and  the 
Waima  incident  of  1893. 

In  the  former  case  it  was  held  by  the  United  States  Supreme  Court 
that  when  two  armed  vessels  engage  in  combat  under  a  mutual  misap- 
prehension as  to  each  other's  real  character,  and  the  vessel  attacked 
captures  the  attacking  vessel  under  the  false  impression  that  she  is  a 
pirate,  and  brings  her  into  port  for  adjudication,  the  capture  is  not  un- 
lawful. But  it  was  also  held  that  there  was  no  ground  for  the  confisca- 
tion of  the  captured  vessel  in  such  a  case,  nor  for  giving  costs  and  dam- 
ages to  its  owner.  The  court  formulated  the  following  principles  of 
public  maritime  law  to  govern  such  cases :  "Ships  of  war  sailing  under 
the  authority  of  their  government  in  time  of  peace  have  a  right  to  ap- 
proach other  vessels  at  sea  for  the  purpose  of  ascertaining  their  real 
character,  so  far  as  the  same  can  be  done  without  the  exercise  of  visita- 
tion or  search,  which  does  not  exist  in  time  of  peace.  No  vessel  is  bound 
to  await  the  approach  of  armed  vessels  under  such  circumstances ;  but 
such  vessels  can  not  lawfully  prevent  their  approach  by  the  use  of  force, 
upon  the  mere  suspicion  of  danger."  The  Marianne  Flora,  11  Whea- 
ton I. 

In  the  case  of  the  Waima  incident  in  1893,  which  was  submitted  to 
arbitration,  compensation  was  awarded  by  France  for  an  attack  by 
French  troops  (mostly  colored)  upon  a  British  camp  at  Waima  in  the 
Conno  country.  The  attack,  which  was  due  to  a  deplorable  mistake,  re- 
sulted in  considerable  loss  on  both  sides.  See  Smith  and  Sibley,  pp.  312- 
14,  for  an  account  of  this  incident. 


THE    NORTH    SEA    INCIDENT 


243 


halt,  and  he  does  not  obey  the  summons,  or  acts  suspiciously, 
the  immediate  consequence  is  a  shot."®° 

Admiral  Rojestvensky  was  credited  with  holding  that 
his  officers  were  justified  in  firing  upon  any  vessels  that  apH 
proached  too  near  his  squadron,  and  the  Russian  naval  of- 
ficer, Captain  Klado,  in  his  testimony  before  the  Commis- 
sion, cited  with  evident  approval  an  English  Admiral  who 
had  once  said  that  "if  a  torpedo-boat  approached  his  squad- 
ron during  the  night,  even  in  time  of  peace,  he  would  first 
sink  it  and  afterward  inquire  into  its  nationality."*^ 

A  British  naval  officer  was  thought  to  have  expressed  the 
prevalent  opinion  in  naval  circles  in  the  following  com- 
ment: 

"The  opinion  is  strongly  held  by  officers  of  our  own  and 
other  European  navies  that  a  fleet  of  warships  at  sea  in  time  of 
war  should  not  allow  any  war  vessel  it  can  not  identify  as  a 
neutral  to  approach  it.  It  is  generally  held,  too,  that  a  merchant 
vessel  should  be  kept  off  unless  it  is  known  to  be  well  disposed, 
for  otherwise  there  is  nothing  to  prevent  a  belligerent  from 
chartering  a  merchant  vessel  and  doing  a  lot  of  damage  with 
her  to  the  enemy's  fleet. 

"No  doubt  the  Russian  Commander  thought  two  of  his  small 
cruisers,  which  suddenly  appeared,  were  Japanese  torpedo- 
boats,  and  if  he  did,  his  only  proper  course  was  to  fire  on  them. 
It  is  really  nothing  remarkable  that  cruisers  should  be  taken 
for  torpedo-boats,  for  there  isn't  a  navy  in  the  world  in  which 
the  same  blunder  has  not  been  made.  I  counted  up  sixteen 
authenticated  cases  the  other  day,  involving  the  best  navies 
in  the  world,  the  British  and  American  not  excepted. ""- 

In  reply  to  Count  Cassini's  view  it  may  be  urged  that  a 

"  See  interview  in  the  N.  Y.  Times  for  October  24.  1904. 

"See  London  Times  (weekly)  for  January  31,  1905. 

"See  special  cable  of  December  ig,  1904,  to  the  N.  Y.  Times. 


244  THE    RUSSO-JAPANESE    WAR 

fortress  is  stationary,  whereas  a  fleet  or  vessel  on  the  high 
seas  is  usually  in  motion,  and  therefore  less  liable  to  sudden 
and  unforeseen  attack.  Besides,  those  who  approach  a  for- 
tress, as  a  rule,  do  so  voluntarily  and  with  full  knowledge 
of  its  whereabouts,  whereas  the  poor  Hull  fishermen  were 
wholly  innocent  even  of  any  knowledge  of  the  proximity  of 
the  Russian  fleet,  which  was  considerably  out  of  its  course. 
The  fishermen  were  pursuing  their  ordinary  peaceable  avo- 
cation in  a  place  where  they  had  a  perfect  right  to  be,  when 
they  were  suddenly  surrounded  and  attacked  without  any 
warning^^  whatsoever. 

In  a  letter  to  the  London  Times  for  May  25,  1904,  Pro- 
fessor Holland  thus  states  the  law  regarding  belligerent  and 
neutral  rights  on  the  high  seas : 

"It  is  beyond  doubt  that  the  theoretically  absolute  right  of 
neutral  ships,  whether  public  or  private,  to  pursue  their  ordi- 
nary routes  over  the  high  seas  in  time  of  war  is  limited  by  the 
right  of  belligerents  to  fight  on  those  seas  a  naval  battle,  the 
scene  of  which  can  be  approached  by  such  ships  only  at  their 
proper  risk  and  peril.  In  such  a  case  a  neutral  has  ample  warn- 
ing of  the  danger  to  which  he  would  be  exposed  did  he  not 
alter  his  intended  course.  It  would,  however,  be  an  entirely 
different  affair  if  he  should  find  himself  implicated  in  belliger- 
ent war  risks,  of  the  existence  of  which  it  was  impossible  for 
him  to  be  informed,  while  pursuing  his  lawful  business  in 
waters  over  which  no  nation  pretends  to  exercise  jurisdiction." 

This  statement  of  the  law,  which  we  believe  to  be  correct, 
certainly  lends  no  support  to  the  extravagant  claims  of  bel- 
ligerent rights  on  the  high  seas  advanced  in  certain  naval 

"  Count  Cassini  admitted  that  a  stranger  approaching  a  fortress  or 
sentinel  is  entitled  to  a  warning.  Such  a  warning  at  sea  is  given  by 
means  of  a  blank  shot. 


THE    NORTH    SEA    INCIDENT  245 

circles,  or  to  the  apparent  assumption  in  Russia  of  the  right 
of  the  Baltic  Fleet  to  traverse  the  high  seas  in  disregard  of 
the  rights  of  neutral  vessels,  forbidding  them  to  approach 
at  their  peril.  If  such  a  view  were  to  prevail  every  belliger- 
ent warship  on  the  high  seas  might  become  a  source  of  pub- 
lic danger  and  a  menace  to  neutral  commerce.  It  is  to  be 
hoped  that  at  its  next  session,  the  Hague  Peace  Conference 
will  take  into  consideration  the  matter  of  rights  and  duties 
of  belligerent  warships  on  the  high  seas,  and  frame  satis- 
factory rules  and  regulations  on  this  important  subject. 


CHAPTER  IX 

The  Hay  Note  and  Chinese  Neutrality 

One  of  the  most  important  and  difficult  problems  which 
confronted  the  world  during  the  Russo-Japanese  War  was 
that  of  maintaining  the  neutrality  and  integrity  of  the  Chi- 
nese Empire.  In  order  to  preserve  the  integrity  and  neu- 
trality of  China  proper,  as  well  as  to  restrict  the  area  of  hos- 
tilities as  much  as  possible,  Secretary  Hay,  acting,  it  is  said, 
at  the  suggestion  of  Germany,  sent  the  following  instruc- 
tions to  our  representatives  at  St.  Petersburg,  Tokio  and 
Peking  on  February  lo,  1904: 

"You  will  express  to  the  Minister  for  Foreign  Affairs  the 
earnest  desire  of  the  Government  of  the  United  States  that  in 
the  course  of  the  military  operations  which  have  arisen  be- 
tween Russia  and  Japan,  the  neutrality  of  China  and  in  all 
practicable  ways  her  administrative  entity  ^  shall  be  respected 
by  both  parties  and  that  the  area  of  hostilities  shall  be  localized 
and  limited  as  much  as  possible,  so  that  undue  excitement  and 
disturbance  of  the  Chinese  people  may  be  prevented,  and  the 

^  The  phrase  "administrative  entity"  was  thought  by  some  to  be  am- 
biguous. It  is  not  really  so,  for  it  must  mean  the  administrative  integrity 
of  that  portion  of  the  Chinese  Empire  which  was  actually  administered 
or  governed  by  Chinese  officials.  It,  at  least,  included  China  proper, 
i.  e.,  the  eighteen  provinces  south  of  the  Great  Wall  and  east  of  Thibet, 
and  probably  Mongolia.  Manchuria  and  Korea  were,  of  course,  ex- 
cluded, as  also  those  portions  of  Chinese  territory  which  had  been  leased 
to  the  Powers.  On  the  phrase  "administrative  entity,"  see  an  article  by 
Professor  Moore  on  "Mr.  Hay's  Work  in  Diplomacy"  in  the  American 
Review  of  Reviezvs  for  August,  1905  (Vol.  32,  pp.  174-75),  and  a  letter 
by  the  writer  to  the  N.  Y.  Nation  for  April  27,  1905  (Vol.  80,  p.  330). 


THE    HAY    NOTE    AND    CHINESE    NEUTRALITY  247 

least  possible  loss  to  the  commerce  and  peaceful  intercourse 
of  the  world  may  be  occasioned." 

At  the  same  time  all  those  Powers  particularly  interested 
in  the  fate  of  China  were  informed  of  this  action  on  the  part 
of  our  Government  and  invited  to  take  similar  action.  Fa- 
vorable replies  were  received  from  nearly  all  the  leading 
European  Powers,  and  the  principles  embodied  in  the  Hay 
Note  were  also  accepted  by  China,  Russia  and  Japan. 

The  acceptance  of  Russia  was,  however,  accompanied  by 
certain  reservations  which  threatened  future  troublesome 
complications.  In  its  reply  of  February  19,  the  Russian  Gov- 
ernment signified  a  willingness  to  respect  the  neutrality  of 
China  on  the  following  conditions :  ( i )  that  China  her- 
self "strictly  observe  all  the  duties  of  neutrality;"  (2)  that 
the  Japanese  Government  "loyally  observe"  not  only  the 
"engagements  entered  into  with  the  Powers,"  but,  in  addi- 
tion, "the  principles  generally  recognized  by  the  law  of  na- 
tions;" and  (3)  that  "neutralization  be  in  no  case  extended 
to  Manchuria."  Japan,  on  the  other  hand,  in  her  reply  of 
February  13,  merely  stipulated  that  the  "region  occupied  by 
Russia"  be  excluded  from  the  neutral  area,  and  that  "Rus- 
sia, making  a  similar  engagement,  fulfill  in  good  faith  the 
conditions  and  terms  of  such  engagement."^ 

It  will  thus  be  seen  that  both  Russia  and  Japan  made 
their  acceptance  of  the  main  principle  of  the  Hay  Note,  vie, 

'  For  the  text  of  the  Hay  Note  and  the  replies  of  Japan  and  Russia, 
see  House  Doc.  of  58th  Congress,  3d  session  (Foreign  Rel.  1904),  p.  2. 
For  the  replies  of  the  other  Powers,  see  the  same  volume,  passim.  Of 
the  Powers  consulted — Austria-Hungary,  Belgium,  Denmark,  France. 
Germany,  Great  Britain,  Italy,  the  Netherlands,  Portugal  and  Spain — 
the  last  alone  made  a  distinctly  unfavorable  reply.  The  replies  of  sev- 
eral Powers,  e.  g.,  Austria-Hungary  and  Belgium,  indicated  a  somewhat 
lukewarm  or  indifferent  attitude. 


248  THE    RUSSO-JAPANESE    WAR 

the  maintenance  of  the  neutrahty  of  China  proper,  condi- 
tional upon  its  observance  by  the  other  belHgerent.  This  was 
entirely  reasonable  and  proper;  but  Russia,  in  addition, 
stipulated  for  a  strict  observance  of  the  duties  of  neutrality 
on  the  part  of  China  and  of  the  law  of  nations  on  the  part 
of  Japan.  Several  large  loop-holes  were  thus  carefully  left 
open  by  Russia,  as  means  of  escape  from  her  obligations  in 
case  such  an  attempt  were  deemed  advisable.  Inasmuch  as 
numerous  disputes  regarding  neutral  rights  and  obligations 
as  between  neutrals  and  belligerents,  as  also  charges  and 
countercharges  of  violations  of  the  law  of  nations  between 
the  belligerents  themselves,  are  bound  to  arise  in  every  war, 
and  inasmuch  as  each  party  is  its  own  judge  in  these  mat- 
ters, it  was  not  difficult  to  see  that  the  future  contained  pos- 
sibilities of  considerable  complication  and  controversy.  Pre- 
texts infinite  in  number  and  variety  would  not  be  wanting 
to  Russia,  if  she  desired  to  avoid  the  natural  consequences 
of  her  engagement. 

The  term  "neutrality,"  as  applied  to  China  by  the  Hay 
Note,  appears  to  have  had  a  double  meaning.  In  the  first 
place,  it  meant  that  China  was  to  be  "neutralized"  during 
the  struggle,  i.  e.,  she  was  not  to  be  permitted  to  become  a 
party  to  the  war.  This  might  perhaps  be  called  a  temporary 
as  opposed  to  a  permanent  neutralization  like  that  of  Bel- 
gium and  Switzerland.  It  was  neutralization  under  a  sort 
of  international  guarantee  of  the  Powers,  although  less  for- 
mal and  perhaps  less  effective  than  those  of  Belgium  and 
Switzerland,  which  were  the  results  of  great  international 
treaties.  It  might,  however,  under  certain  circumstances, 
prove  to  be  a  step  in  the  direction  of  permanent  neutraliza- 
tion. If  such  guarantees  are  to  prove  wholly  successful,  the 
guarantors  must,  of  course,  be  ready  and  willing  to  resort 


THE    HAY    NOTE    AND    CHINESE    NEUTRALITY  249 

to  other  means  than  those  of  "moral  suasion"  or  "pressure 
of  public  opinion"  in  case  of  necessity.  Whether  the  Pow- 
ers were  prepared  to  resort  to  the  use  of  force  in  the  case 
of  China  was  extremely  doubtful,  to  say  the  least. 

In  the  second  place,  the  maintenance  of  Chinese  neutral- 
ity, as  implied  in  the  Hay  Note,  meant  that  hostilities  or 
hostile  preparations  must  not  be  carried  on  within  the  terri- 
torial limits  of  China  proper,  /.  c,  in  those  parts  of  China 
administered  by  Chinese  officials.  This  was,  to  a  certain 
extent,  merely  the  guarantee  of  a  right  already  in  existence, 
viz.,  of  the  undoubted  right  of  China  to  remain  neutral,  if 
she  so  desired,  and  to  have  her  territorial  sovereignty  re- 
spected during  the  struggle  by  both  belligerents.  The  vio- 
lation of  this  right  by  either  belligerent  would  have  consti- 
tuted a  gross  breach  of  International  Law  in  itself  which 
it  might  have  been  the  duty  of  China  to  resist  by  force  of 
arms ;  and,  in  case  China  herself  were  incapable  of  such  an 
effort,  such  an  attack  might  have  been  resisted  by  any  State 
which  chose  to  champion  her  cause,  although  such  knight- 
errantry  is  rare  among  nations  except  where  their  national 
interests  are  involved.  The  right  of  the  Powers  to  take 
such  measures  as  were  deemed  necessary  in  order  to  pre- 
vent or  to  defeat  an  attack  upon  the  neutrality  of  China 
was  clear  and  unquestionable. 

It  was  clearly  understood  on  all  sides  that  Manchuria,  or 
that  portion  of  the  Chinese  Empire  which  was  administered, 
in  accordance  with  treaty  stipulations,  by  Russian  officials 
for  certain  purposes  and  was  actually  occupied  by  Russian 
troops,  should  be  exempt  from  the  application  of  the  prin- 
ciples of  the  Hay  Note.  The  international  status  of  Man- 
churia during  the  war  appears  to  have  been  that  of  "double 


250  THE    RUSSO-JAPANESE    WAR 

or  ambiguous  sovereignty."^  In  such  cases  the  territories 
or  districts  in  question  owe  a  nominal  allegiance  to  one  sov- 
ereign, but  are  really  subject  to  the  commands  of  another 
who  is  in  actual  possession.  It  is  possible  for  such  a  place 
or  region  to  possess  a  belligerent  and  a  neutral  character  at 
the  same  time — belligerent  in  respect  to  the  belligerents  and 
neutrals,  and  neutral  in  respect  to  the  nominal  sovereign 
and  his  relations  with  other  states.  "The  precise  legal  posi- 
tion of  these  territories,  is  very  difficult,  and  perhaps  impos- 
sible, to  determine."*  One  modern  publicist,  who  carefully 
examined  the  question,  came  to  the  conclusion  that  "a  ju- 
ristic examination  of  these  relations  can  only  lead  to  nega- 
tive results;  it  is  a  political  provisional  arrangement  in 
which  law  and  fact  are  in  contradiction  to  each  other."^ 

The  law  which  should  govern  in  all  such  anomalous 
cases  is,  however,  reasonably  clear  and  well-defined.  "The 
belligerency  or  neutrality  of  territory  subject  to  a  double 
sovereignity  must  be  determined  for  external  purposes, 
upon  the  analogy  of  territory  under  military  occupation,  by 
the  belligerent  or  neutral  character  of  the  state  de  facto  ex- 
ercising permanent  military  control  within  it.  .  .  .  When 
a  place  is  militarily  occupied  by  an  enemy,  the  fact  that  it 
is  under  his  control,  and  that  he  consequently  can  use  it  for 
the  purposes  of  his  war,  outweighs  all  considerations  found- 
ed on  the  bare  legal  ownership  of  the  soil.  In  like  manner, 
but  with  stronger  reason,  where  sovereignty  is  double  or 
ambiguous  a  belligerent  must  be  permitted  to  fix  his  atten- 

'  Other  examples  of  double  or  ambiguous  sovereignty  are  Bosnia, 
Herzogovina,  Cyprus,  and  Egypt.  These  territories  or  districts  are  under 
the  nominal  sovereignty  of  the  Sultan  of  Turkey,  but  are  really  admin- 
istered by  Austrian  and  English  officials. 

*  Hall,  Treatise,  note  on  p.  509  of  3d  ed. 

'  Holzendorf,  Handhuch,  II,  §  51,  quoted  by  Hall  in  note  cited  above. 


THE    HAY    NOTE    AND    CHINESE    NEUTRALITY  25 1 

tion  upon  the  crude  fact  of  the  exercise  of  power.  He  must 
be  allowed  to  deal  his  enemy  blows  whenever  he  finds  him 
in  actual  military  possession,  unless  that  possession  has  been 
given  him  for  a  specific  purpose,  such  as  that  of  securing  in- 
ternal tranquillity,  which  does  not  carry  with  it  a  right  to 
use  the  territory  for  his  military  objects.  On  the  other 
hand,  where  a  scintilla  of  sovereignty  is  possessed  by  a  bel- 
ligerent state  over  territory  where  it  has  no  real  control, 
an  enemy  of  the  state,  still  fixing  his  attention  on  facts, 
must  respect  the  neutrality  with  which  the  territory  is  prac- 
tically invested."® 

In  view  of  the  anomalous  position  of  China  in  respect  to 
Manchuria  during  the  war,  and  also  because  of  the  vast 
interests  involved  and  the  great  danger  to  the  peace  of  the 
world  which  might  have  resulted  from  any  serious  violation 
of  Chinese  neutrality  (whether  by  either  or  both  belliger- 
ents or  by  China  herself),  it  is  not  surprising  that  the  Press 
of  all  countries  (and  particularly  of  our  own)  was  very 
sensitive  to  any  charges  of  a  violation  of  the  neutrality  of 
China  (especially  by  Russia),  and  that  much  was  said  by 
way  of  criticism  and  denunciation  which  was  either  unjust 
or  impolitic. 

Several  weeks  after  the  outbreak  of  the  war  Admiral 
Alexieff  issued  a  somewhat  quaint  and  curious  proclamation 
to  the  inhabitants  of  Manchuria,  of  which  there  was  much 
unfair  criticism.  This  manifesto,  which  contained  "six  reg- 
ulations which  all  must  tremblingly  obey,"  after  charging 
the  Japanese  with  treachery  in  covertly  attacking  the  Rus- 
sian fleet  while  peaceful  negotiations  were  in  progress,  laid 
especial  stress  upon  the  indissoluble  unity  of  Russian  and 

•Hall,  op.  cit.,  p.  511. 


252  THE    RUSSO-JAPANESE    WAR 

Chinese  interests  in  Manchuria.  He  expressed  the  opinion 
that  since  "Russian  and  Chinese  interests  are  intertwined, 
like  a  cart  and  its  prop,  mutually  dependent,"  it  was  the 
duty  of  all  to  join  in  attacking  and  resisting  the  invader. 
But  since  the  Chinese  Government  "desires  to  keep  its 
hands  in  its  sleeves  and  maintain  an  attitude  of  neutrality," 
he  urged  all  officials  (Chinese)  of  Manchuria  to  render  the 
Russian  army  every  possible  assistance  in  obtaining  sufH 
plies,  and  he  directed  all  the  inhabitants  of  Manchuria  to 
treat  the  Russian  troops  with  "sincerity  and  good  feeling." 
He  declared  that  he  would  hold  all  law-abiding  people,  re- 
siding in  the  neighborhood  of  Manchurian  railways  or  tele- 
graph or  telephone  wires,  responsible  for  their  protection, 
and  that  the  local  officers  concerned,  together  with  the  gen- 
try and  village  elders  must,  with  united  purpose,  devise 
means  to  prevent  damage.  Should  attempts  at  destruction 
be  made,  not  only  would  the  offenders  themselves  be  se- 
verely punished,  but  the  officials  and  people  of  the  vicinity 
who  "sit  by"  and  witness  such  attempts  would  be  held  re- 
sponsible. He  also  threatened  severe  punishment  against 
any  one  privily  harboring  or  concealing  the  Chunchuses,  or 
red-bearded  brigands  of  Manchuria.  He  finally  declared  that 
should  "any  of  the  Chinese  officials  or  people  treat  the  Rus- 
sian troops  with  enmity,  the  Russian  Government  will  as- 
suredly take  measures  to  exterminate  such  persons,  showing 
no  leniency."^ 

While  the  language  of  this  proclamation  is  certainly 
somewhat  harsh  and  the  penalties  prescribed  rather  severe, 
they  do  not  seem  to  go  beyond  the  rights  of  an  invader  or 

'  For  the  text  of  this  curious  and  interesting  proclamation,  see  the 
London  Times  (weekly  ed.)  for  February  26,  1904.  See  also  House  Doc. 
of  the  58th  Congress,  3d  session  (For.  Rel.  1904),  pp.  127  fif. 


THE    HAY    NOTE    AND    CHINESE    NEUTRALITY  253 

a  military  occupant,  nor  do  they  constitute  a  violation  of 
Chinese  neutrality,  as  was  charged  in  some  quarters.  As 
has  been  noted  above,  Manchuria  was  not  included  within 
the  sphere  of  Chinese  neutrality  as  far  as  the  belligerents 
in  their  relations  with  each  other  and  with  neutrals  were 
concerned.^  The  status  of  Manchuria  was  one  of  double 
or  ambiguous  sovereignty  which  is  closely  analogous  to 
that  of  a  territory  or  district  under  military  or  belligerent 
occupation.  Under  such  circumstances,  pillage  or  mere 
plunder  is  strictly  forbidden,  and  private  property  on  land 
is  not  subject  to  capture  and  confiscation ;  but  the  invader 
or  military  occupant  has  an  undoubted  right  to  levy  and 
collect  fines,  requisitions  and  contributions  for  strictly  mili- 
tary purposes,  and  he  may,  if  he  chooses,  make  the  war  sup- 
port itself.  These  should,  however,  be  as  orderly  and  as 
light  as  possible,  and  they  should  not  exceed  the  needs  of 
the  troops  or  the  resources  of  the  district  in  which  they  are 
levied.  Above  all,  it  should  never  be  forgotten  that  the 
fundamental  law  of  warfare  is  that  of  reasonable  military 
necessity,  and  that  only  so  much  violence  is  permitted  in  war 
as  is  necessary  for  self-protection  and  the  destruction  of  the 
enemy's  power  of  resistance.  The  fact  that  Admiral  Alex- 
ieff  insisted  that  the  Chinese  in  Manchuria  treat  Russian 
soldiers  in  a  friendly  or  non-hostile  manner,  or  even  that 
they  were  required  to  furnish  the  Russian  army  with  sup- 
plies and  with  carts  for  purposes  of  transportation  was  no 
evidence  of  an  intention  or  a  desire  to  violate  Chinese  neu- 
trality, as  the  American  Press  seems  to  have  regarded  it, 
nor  was  it  a  breach  of  the  laws  of  civilized  warfare.  Nor 
was  there  any  violation  of  law  or  custom  in  the  severe  pen- 

'  It  was  neutral  in   respect  to  the  relations  between  China  and  other 
states. 


254  THE    RUSSO-JAPANESE    WAR 

allies  prescribed  for  the  destruction  of  railways  or  of  tele- 
graph and  telephone  wires,  or  the  harboring  of  brigands. 

Almost  from  the  very  beginning  of  the  war  the  alleged 
violations  of  Chinese  neutrality  by  China  and  Japan  were 
made  the  subject  of  frequent  protests  and  complaints  on  the 
part  of  Russia.  Japan  also  at  times  complained  of  such 
violations  by  China  and  Russia,  but  her  protests  appear  to 
have  been  less  formal  and  persistent  than  were  those  of 
Russia. 

It  was  said  that  the  Russian  minister  at  Peking  made 
firm  representations  to  the  Chinese  Government  as  early  as 
March,  1904,  concerning  the  activity  of  the  Chinese  troops 
along  the  Manchurian  frontier;^  that  Russia  at  the  same 
time  served  notice  on  China  that  the  latter  must  not  send 
troops  beyond  the  Great  Wall ;  and  that  China  was  informed 
that  she  must  use  her  influence  to  restrain  the  Chinese  ban- 
dits (who  were  spoken  of  as  partially  under  the  control  of 
Chinese  officials)  from  interfering  with  the  railway  and  tele- 
graph lines.  It  was  also  stated  that  Russia  notified  China 
that  a  refusal  to  heed  these  warnings  would  be  considered 
a  breach  of  Chinese  neutrality,  and  that  China  received  a 
pointed  intimation  of  the  defensive  measures  which  Russia 
might  in  that  case  be  compelled  to  take  for  her  own  protec- 
tion. 

The  dispatch  of  18,000  Chinese  troops  to  the  Manchurian 

"  On  March  4,  1904,  Mr.  Conger,  the  American  representative  at  Pe- 
king, reported  to  the  State  Department  at  Washington  that  18,000  Chi- 
nese troops  had  been  sent  to  the  border  of  Manchuria  to  preserve  order 
in  accordance  with  the  Chinese  Neutrality  Proclamation.  He  stated  that 
because  of  Russia's  opposition  the  troops  that  were  originally  intended 
to  be  sent  into  that  part  of  Manchuria  which  had  already  been  surren- 
dered to  China  (i.  e.,  the  region  west  of  the  Liao  River)  would  be  kept 
on  the  west  side  of  the  Manchurian  border.  See  House  Doc.  of  58th 
Congress,  3d  session  (For.  Rel.  1904),  p.  128. 


THE    HAY    NOTE    AND    CHINESE    NEUTRALITY  255 

frontier  was  not  a  menace  to  Russia,  inasmuch  as  it  had  for 
its  object  the  perfectly  legitimate  one  of  preserving  order 
and  of  protecting  the  neutral  rights  of  China  against  pos- 
sible or  probable  encroachment.  It  was  certainly  not  a  vio- 
lation of  Chinese  neutrality.  The  request  that  China  use 
her  influence  to  restrain  the  Chinese  bandits  in  Manchuria 
as  far  as  possible  seems  to  have  been  a  perfectly  proper  one 
to  make  in  itself,  although,  to  be  sure,  it  would  have  been 
absurd  for  Russia  to  claim  that  China  could  be  held  respon- 
sible for  any  degree  or  amount  of  lawlessness  and  violence 
on  the  part  of  any  portion  of  the  population  in  Manchuria, 
or  for  the  attacks  of  Chinese  bandits  in  that  region. 

In  the  latter  part  of  March,  1904,  dispatches  from  St. 
Petersburg  declared  that  Russia  had  demanded  from  China 
the  dismissal  of  the  Japanese  military  instructors  in  the 
Chinese  army.  Inasmuch  as  these  appear  to  have  been  very 
few  in  number  and  as  they  had  all  been  appointed  several 
years  prior  to  the  outbreak  of  the  war,  this  so-called  viola- 
tion of  neutrality  was,  at  the  most,  one  of  those  "micro- 
scopic injuries"  of  which  belligerents  rarely  complain. 

During  the  months  of  March  and  April,  1904.  there  arose 
a  newspaper  controversy  regarding  the  neutrality  of  that 
portion  of  Manchuria  which  lies  west  of  the  Liao  River,  as 
also  in  respect  to  the  neutrality  of  the  treaty-port  of  Niu- 
Chwang,  an  important  strategic  point  east  of  this  river 
and  one  of  the  termini  of  the  Northern  China  Railway  sys- 
tem. It  was  in  the  region  west  of  the  Liao  River  that 
China's  neutrality  was  "subjected  to  the  severest  strain  and 
the  closest  scrutiny  and  criticism,"  as  a  writer  in  the  Con- 
temporary Reviciv^^  had  predicted  would  be  the  case.     This 

^*See  article  on  "The  Neutrality  of  China"  by  D.  C.  Boulger  in  the 
Contemporary  Reznczv  for  April,  1904. 


256  THE    RUSSO-JAPANESE    WAR 

region,  like  the  rest  of  Manchuria,  was  fully  occupied  by 
Russia  in  consequence  of  the  Boxer  uprising  in  1900.^^  On 
April  8,  1902,  Russia  agreed  to  a  gradual  evacuation  of 
Manchuria  within  eighteen  months,  and  of  this  particular 
region  within  six  months,  although  she  reserved  to  herself 
the  right  to  guard  the  Russian  railways.  According  to  this 
treaty,  Russia  agreed  to  the  "reestablishment  of  Chinese  au- 
thority in  Manchuria,"  which  was  to  remain  "an  integral 
part  of  the  Chinese  Empire,"  and  also  consented  to  "restore 
to  China  the  right  to  exercise  sovereign  and  administrative 
powers."^^  This  arrangement,  however,  was  only  partially 
carried  out,  owing,  as  Count  Cassini  claimed, ^^  to  the  "fail- 
ure of  China  to  furnish  the  required  guarantees."  The  re- 
gion west  of  the  Liao  River  appears  to  have  been  the  only 
portion  of  Manchuria  which  was  actually  evacuated  by  Rus- 
sia.^* Niu-Chwang  and  Mukden,  e.  g.,  remained  in  her  pos- 
session in  spite  of  repeated  promises  to  withdraw  the  garri- 
sons from  these  cities. 

"  This  region  had,  however,  been  practically,  though  not  definitely, 
under  Russian  control  since  1898,  when  China  leased  Port  Arthur  and 
the  Bay  of  Ta-lien  to  Russia,  and  at  the  same  time  granted  her  a  railway 
concession  through  Southern  Manchuria  from  Siberia,  including  the 
right  to  garrison  and  govern  the  territory  along  the  line.  A  similar  rail- 
way concession  in  Northern  Manchuria  had  been  obtained  by  Russia  as 
early  as  1896. 

"Art.  I  of  the  treaty.  See  Current  History  (XII,  pp.  292  ff)  for  June, 
1902. 

"  See  article  on  "Russia  in  the  Far  East"  by  Count  Cassini  in  North 
Americati  Review  for  May,  1904. 

"  A  portion  of  the  Russian  army  seems,  indeed,  to  have  been  with- 
drawn from  the  province  and  city  of  Mukden,  but  the  remainder  was 
simply  stationed  at  important  places  along  the  Manchurian  railways.  In 
September,  1903,  Russia  undertook  to  restore  Niu-Chwang  and  to  evacu- 
ate Mukden  on  October  8,  1903,  but  this  was  never  done;  for,  on  Decem- 
ber 28,  1903,  the  Russian  Minister  at  Peking  informed  the  Chinese  For- 
eign Office  that  "no  further  steps  towards  evacuation  can  be  undertaken 
at  present."  See  Statesman's  Year  Book  for  1904,  p.  516.  Cf.  supra,  pp. 
33-34- 


THE    HAY    NOTE    AND    CHINESE    NEUTRALITY  257 

China  claimed  that  this  region  was  neutral  and  included 
it  in  her  Declaration  of  Neutrality.  Russia,  however,  de- 
clined to  respect  its  neutrality,  and  reoccupied  the  district, 
forbidding  China  to  station  troops  within  its  borders.  Yet. 
on  the  other  hand,  she  appears  to  have  shown  a  disposition 
to  hold  China  responsible  for  the  preservation  of  order  in 
this  territory,  and  is  even  said  to  have  intimated  that  a  land- 
ing of  Japanese  troops  on  its  coast  would  constitute  a  viola- 
tion of  Chinese  neutrality,  for  which  China  would  be  held 
responsible. 

A  great  outcry  was  raised  by  the  American  Press  in  con- 
sequence of  the  proclamation  of  martial  law  at  Niu-Chwang 
on  March  2y,  1904.  This  outcry  was  probably  aggravated 
by  the  indiscreet  action  of  the  Russian  police  authorities  in 
ordering  some  American  (and  British)  flags  on  certain  pri- 
vate buildings  at  Niu-Chwang  to  be  hauled  down.  The 
Russian  authorities  seem  to  have  been  clearly  within  their 
rights  in  this  matter,  but  they  wisely  apologized  for  their 
action  and  the  flags  were  restored  to  their  former  places 
upon  the  representations  of  the  American  consul. ^^ 

It  was  also  reported  that  the  foreign  consuls  at  Niu- 
Chwang  were  notified  that  they  were  no  longer  to  exercise 
consular  jurisdiction  and  consular  functions,  especially  those 
of  extra-territorial  jurisdiction,  but  this  report  does  not  ap- 
pear to  have  been  confirmed.  It  seems  that  certain  of  their 
functions,  especially  those  comprehended  under  the  term 
"extra-territorial ity."  were  merely  suspended,  and  that  the 
foreign  consuls  continued  to  exercise  such  of  their  duties 

"There  seems  to  have  been  no  protest  at  Wasliington.  Of  course,  if 
the  flag  had  been  removed  from  the  official  residence  of  the  consul,  the 
case  would  have  been  different.  A  prompt  and  ample  apology  would 
have  been  necessary. 


25S  THE    RUSSO-JAPANESE    WAR 

as  were  compatiable  with  the  execution  of  martial  law.  We 
do  not  recall  that  it  has  been  customary  to  deprive  consuls 
of  their  ordinary  duties  in  time  of  war,  but  it  could  hardly 
be  expected  that  they  should  be  permitted  to  perform  such 
service  as  would  be  inconsistent  with  the  operation  of  mili- 
tary law. 

In  declaring  martial  law  at  Niu-Chwang,  as  also  in  occu- 
pying the  region  west  of  the  Liao  River  with  troops,  Russia 
was  clearly  acting  within  her  rights  and  was  guilty  of  no 
violation  of  neutral  rights  or  of  the  neutrality  of  China. 
This  region  forms  a  part  of  Manchuria,  and  was  at  least 
impliedly  excepted  from  the  application  of  the  Hay  Note, 
having  been  in  the  possession  or  under  the  control  of  Russia 
since  1900.  When  Russia  chose  to  reoccupy  this  region 
with  troops  in  the  early  part  of  the  struggle,  all  doubts  as  to 
its  neutrality  vanished  and  it  became  a  part  of  the  field  of 
possible  military  operations  for  Japan  as  well  as  Russia; 
for  it  would  be  absurd  for  one  belligerent  to  make  military 
use  of  territory  while  claiming  any  part  of  it  as  neutral  over 
against  the  other  belligerent.^® 

In  a  Circular  Note  to  the  Powers, ^^  issued  in  January, 
1905,  Russia  went  so  far  as  to  threaten  to  "consider  the 
neutrality  of  China  from  the  standpoint  of  her  own  interests 
in  case  the  actual  situation  in  China,  to  which  attention  is 
now  earnestly  invited,  shall  continue."  In  this  Note  the 
Russian  Government  specified  at  least  five  distinct  breaches 
of  Chinese  neutrality,  vis.:  (i)  the  Ryeshitelni  incident; 
(2)  the  use  of  the  Mia-Tao  islands,  which  lie  between  Port 
Arthur  and  Teng-chow  at  the  entrance  of  the  Gulf  of  Pe- 

^^  Russia  seems  to  have  made  such  claims  in  respect  to  the  seacoast. 
"  This  Note,  being  regarded  as  confidential,  has  not  been  made  public, 
but  an  approved  synopsis  w^as  given  to  the  Press  on  January  17,  1905. 


THE    HAY    NOTE    AND    CHINESE    NEUTRALITY  259 

chi-li,  as  a  base  for  the  Japanese  fleet;  (3)  the  operations 
of  the  Chunchuses  or  Chinese  bandits  on  neutral  territory 
under  the  command  of  Japanese  officers  (it  was  also 
charged  that  whole  detachments  of  these  bandits  were  en- 
rolled in  the  Japanese  army,  that  they  were  receiving  regu- 
lar pay  for  their  services  from  the  Japanese  Government, 
and  that  Japanese  instructors  belonging  to  the  Chinese  mili- 
tary service  occompanied  the  Chinese  troops  stationed  on  the 
northen  province  of  Pe-chi-li,  professedly  for  the  purpose  of 
maintaining  neutrality)  ;  (4)  the  frequent  importation  from 
Chinese  ports  of  contraband  of  war  into  Dalny;  and  (5) 
the  sale  of  iron  ore  from  the  Chinese  Government  factories 
at  Han-yan  to  the  Japanese  for  military  use. 

The  Japanese,  on  their  part,  complained  of  the  following 
violations  of  Chinese  neutrality  by  Russia : — the  constant 
violation  of  the  neutrality  of  that  portion  of  Manchuria 
west  of  the  Liao  River  and  of  the  treaty  port  of  Niu- 
Chwang;  the  appropriation  by  Russia  of  Manchurian  mili- 
tary stores  and  provisions ;  the  chartering  of  the  German 
merchant  steamer  Pooping  at  Che-Foo  to  carry  Russian 
arms;  the  dispatch  of  3,600.000  small-arm  cartridges  from 
Kalgan  to  Port  Arthur;  the  establishment  of  wireless-tele- 
graphy communication  between  Port  Arthur  and  Che-Foo; 
the  unwarranted  delay  of  the  Mandjiir  in  disarming  at 
Shanghai ;  the  flight  of  Russian  officers  and  sailors  from  the 
Ryeshitclni  when  they  were  supposed  to  be  interned ;  and  the 
aid  extended  at  Che-Foo  to  Russian  soldiers  fleeing  from 
Port  Arthur. 

The  Chinese,  in  their  turn,  entered  the  following  bill  of 
particulars  against  Russia :  the  building  of  bridges  and  en- 
campment of  troops  west  of  the  Liao  River,  which,  in  their 
view,  marked  the  boundarv  line  of  the  neutral  zone :  the 


26o 


THE    RUSSO-JAPANESE    WAR 


forced  sale  within  the  neutral  zone  of  provisions  to  the  Rus- 
sians ;  the  smuggling  of  arms,  ammunition  and  other  con- 
traband articles  by  the  Russians  (presumably  from  China 
proper  into  Manchuria)  ;  and  the  escape  from  the  Chinese 
authorities  of  the  captain  of  the  Ryeshitelni,  while  under 
military  escort  on  his  way  to  Shanghai. 

The  trivial  nature  of  most  of  these  allegations  of  the  vio- 
lation of  Chinese  neutrality  on  the  part  of  Russia  and  Japan 
as  well  as  of  China  is  a  matter  of  surprise,  and  many  of 
them  would  scarcely  deserve  emphasis  or  serious  discussion 
were  it  not  for  the  magnitude  of  the  interests  involved  and 
the  great  danger  of  international  complications  which  ex- 
isted at  the  time.  The  only  really  serious  charge  against 
Japan  was  the  capture  of  the  Russian  torpedo  boat  de- 
stroyer Ryeshitelni,  which  had  taken  refuge  in  the  Chinese 
port  of  Che-Foo  on  the  night  of  August  ii,  1904.  This 
vessel  was  seized  in  this  harbor  and  towed  out  on  the  night 
in  question  in  spite  of  the  fact  that  she  was  partially  disa- 
bled and  that  she  had  been  at  least  partly  disarmed^  ^  in  ac- 
cordance with  the  demand  of  the  Chinese  Admiral  at  Che- 
Foo.  This  was  an  undoubted  violation  of  Chinese  neutral- 
ity and  of  the  law  of  nations  on  the  part  of  Japan,  the  seri- 

^*  This  was  the  case,  at  least,  according  to  the  statements  of  the  Rus- 
sian commander  and  Admiral  Alexiefif.  But  the  fact  of  disarmament 
was  denied  by  the  Japanese  Navy  Department.  For  the  official  state- 
ments on  both  sides,  see  London  Times  (weekly  ed.)  for  August  19, 
1904.  See  also  the  New  York  Times  for  August  15.  The  fact  that  the 
Ryeshitelni  was  partly  disarmed  was  practically  admitted  by  Mr.  Taka- 
hira,  the  Japanese  Minister  at  Washington,  in  an  interview  published  in 
the  New  York  Times  for  August  28,  1904.  See  also  Count  Cassini's  in- 
terview in  the  New  York  Herald  for  August  19.  For  impartial  reviews 
of  the  facts  and  law  bearing  on  this  case,  see  Smith  and  Sibley,  pp. 
116  ff,  and  Lawrence,  pp.  292  ff. 


THE    HAY    NOTE    AND    CHINESE    NEUTRALITY  26 1 

ous  character  of  which  has  in  nowise  been  weakened  by  the 
specious  grounds  on  which  it  has  been  defended. 

The  Japanese  attempted  to  justify  their  action  on  the 
ground  that  China  had  failed  to  enforce  her  neutrahty  over 
against  Russia/^  that  the  neutrality  of  China  was  plainly 
imperfect  inasmuch  as  she  was  incapable  of  fulfilling  her 
neutral  obligations,  and  that,  in  the  face  of  plain  proofs  of 
such  incompetence,  Japan  was  compelled  to  enforce  her  bel- 
ligerent rights.  It  was  also  said  that  Japan  did  not  intend 
to  repeat  the  Mandjur  farce,  and  that  she  could  not  afford 
to  break  up  her  fleet  for  the  purpose  of  watching  Chinese 
ports  in  which  Russian  vessels  were  abusing  the  privileges 
of  asylum  and  taking  advantage  of  China's  inability  to  en- 
force neutral  rights."" 

Without  examining  the  truth  or  seriousness  of  these 
charges,  it  is  sufficient  to  observe  that  none  of  them,  even  if 
fully  proven,  would  justify  this  violation  of  Chinese  terri- 
torial sovereignty.  One  international  wrong  does  not  jus- 
tify another,  and  there  are  other  ways  of  obtaining  redress 
for  violations  of  neutrality,  which  are  not  too  gross  or 
serious,  than  that  of  an  attack  upon  territorial  sovereignty. 
As  Daniel  Webster,  then   (1841)   Secretary  of  State,  said 

'"Amongst  the  breaches  of  Chinese  neutrality  by  Russia  were  enu- 
merated the  constant  violations  of  the  neutrality  of  Chinese  territory 
between  the  Great  Wall  and  the  Liao  River,  Russia's  disregard  of  the 
neutrality  of  the  treaty  port  of  Niu-Chwang,  the  sinking  of  a  British 
vessel,  Hipsang,  by  the  Russians,  and  the  use  by  Russian  agents  of  the 
port  of  Che-Foo  as  a  base  of  supplies  and  military  operations  during 
the  war.  (It  was  claimed  that  Che-Foo  had  been  used  by  Russia  as  a 
wireless  telegraphy  station,  and  that  Chinese  junks  used  this  port  as  a 
base  for  the  blockade  of  Port  Arthur.) 

""See  Tokio  correspondent  to  the  London  Times  (weekly  cd.)  for 
August  19,  1904.  For  Japanese  official  statements,  see  House  Doc.  of 
58th  Congress,  3d  session  (For.  Rel.  for  1904),  pp.  139  f  and  425. 


262  THE   RUSSO-JAPANESE   WAR 

in  the  case  of  the  CaroUne,^'^  in  order  to^  excuse  such  an  act 
as  the  violation  of  neutral  territorial  sovereignty,  one  must 
"show  a  necessity  of  self-defense,  instant,  overwhelming, 
leaving  no  choice  of  means  and  no  moment  for  delibera- 
tion." And  as  our  most  eminent  jurist^ ^  has  well  said  in  a 
famous  case:  "If  there  be  no  prohibition,  the  ports  of  a 
friendly  nation  are  considered  as  open  to  the  public  ships  of 
all  Powers  with  whom  it  is  at  peace,  and  they  are  supposed 
to  enter  such  ports  and  remain  in  them  while  allowed  to  re- 
main, under  the  protection  of  the  Government  of  the  place." 
"It  is  the  duty  of  the  belligerent  to  refrain  from  the  exercise 
of  hostilities  within  the  shelter  of  neutral  territorial  wa- 
ters,^^  and,  if  any  vessel,  whether  belligerent  or  neutral,  be 
assailed  within  such  limits,  it  is  incumbent  on  the  neutral 
government  in  the  first  instance  to  defend  her  against  her 

"  See  Wharton's  Digest,  I,  §  50  c. 

"Chief  Justice  Marshall  in  Exchange  v.  McFaddon,  7  Cranch  116. 

^  See  the  opinion  of  Sir  W.  Scott  (later  Lord  Stowell)  in  the  case  of 
the  Anna  (5C  Rob.  272),  where  it  was  held  that  the  capture  of  an 
enemy's  ship  in  neutral  waters  is  illegal,  and  that  such  a  vessel  must  be 
restored  by  the  prize  court  of  the  captor.  Sir  W.  Scott  gave  it  as  his 
opinion  that  this  would  be  so  even  if  the  vessel  had  been  pursued  into 
neutral  waters.  Instances  of  the  violation  of  neutral  territory  have  not 
been  altogether  rare,  even  in  the  nineteenth  century.  They  were  perhaps 
the  rule  rather  than  the  exception  in  the  eighteenth  century.  The  United 
States  was  guilty  of  at  least  two  such  violations  during  the  Civil  War — 
the  Florida  in  Brazilian,  and  the  Chesapeake  in  British  waters ;  but  in 
both  these  cases  the  acts  were  disavowed  and  ample  apology  and  repara- 
tion were  made. 

The  case  of  the  General  Armstrong  (see  Wharton's  Digest,  II,  §  227), 
in  which  Louis  Napoleon  acted  as  arbitrator  in  1852,  has  been  cited  in 
support  of  the  action  of  the  Japanese,  but  the  case  is  not  at  all  analogous. 
Besides,  although  the  decision  was  doubtless  right,  it  appears  to  have 
been  based  on  a  wrong  principle.  In  that  case  it  was  decided  that  the 
Portuguese  Government  could  not  be  held  responsible  for  the  destruc- 
tion of  the  American  privateer  General  Armstrong  in  consequence  of  an 
attack  by  a  British  fleet  in  Portuguese  waters  in  1814,  inasmuch  as  the 
American  vessel  had  begun  the  actual  attack,  and  because  her  captain 


THE    HAY    NOTE    AND    CHINESE    NEUTRALITY  263 

assailant,  and,  if  she  be  captured,  to  exert  itself  to  the  ut- 
most to  effect  restitution  or  otherwise  to  secure  redress  for 
the  injury."^*  Besides,  there  is  no  such  status  in  Interna- 
tional Law  as  that  of  imperfect  neutrality. 

The  Japanese  Government  refused  to  offer  any  apology^ 
disavowal  or  restitution  for  this  gross  violation  of  Chinese 
neutrality,  and  it  must  be  admitted  that  her  conduct  in  this 
matter,  although  altogether  exceptional,  constitutes  a  blot 
upon  a  record  which  was  otherwise  remarkably  clean  and 
spotless  from  the  standpoint  of  International  Law. 

But,  even  granting  the  serious  nature  of  this  charge 
against  Japan,  it  can  not  be  admitted  that  the  conduct  of 
Japan  on  this  occasion  would  have  justified  a  violation  of 
the  neutrality  or  territorial  integrity  of  China  by  Russia. 
As  has  been  said,  one  international  wrong  does  not  justify 
another,  and  there  are  other  ways  of  obtaining  redress  for 
violations  of  neutrality,  than  by  an  attack  upon  territorial 
sovereignty.  Besides,  China  was  in  no  wise  responsible  for 
this  violation  of  her  neutrality;  and  her  Government,  being 
under  a  pledge  to  keep  the  peace,  seems  to  have  done  every- 

had  not  applied  "from  the  beginning  for  tlie  intervention  of  the  neutral 
sovereign."  As  Lawrence  {Principles,  p.  541)  points  out,  while  this 
award  was  right,  the  principle  of  the  decision  was  wrong  in  so  far  as  it 
appears  to  support  the  broad  doctrine  laid  down  by  some  writers  (see 
Hall,  p.  628),  that  a  "belligerent  who,  when  attacked  in  neutral  territory-, 
elects  to  defend  himself,  instead  of  trusting  for  protection  or  redress  to 
his  host,  by  his  own  violation  of  sovereignty  frees  the  neutral  from  re- 
sponsibility." Whether  we  accept  or  reject  the  principle  supposed  to 
underly  the  decision  of  Napoleon  in  the  case  of  the  General  Armstrong, 
it  has  no  application  in  the  case  of  the  Ryeshitelni.  In  the  latter  case, 
Japan  was  clearly  the  actual  as  well  as  the  real  aggressor,  and  the  Rus- 
sian commander  had  placed  himself  under  the  protection  of  the  Chinese 
Admiral,  who  proved  to  be  a  weakling  or  a  coward. 
**  Walker,  The  Science  of  Int.  Laze,  p.  451. 


264  THE    RUSSO-JAPANESE    WAR 

thing  possible  under  the  circumstances  to  secure  reparation 
and  restitution. 

The  remaining  charges  of  Russia  against  China  and 
Japan  are  comparatively  trivial,  and  some  of  them  even 
puerile,  in  their  character.  The  merest  tyro  in  the  study  of 
International  Law  knows  that  it  is  not  the  duty  of  a  neutral 
government  to  forbid  the  exportation  from  its  ports  of  con- 
traband of  war  or  to  prevent  blockade  running  on  the  part 
of  its  subjects  unless  some  of  its  ports  are  being  used  as  a 
constant  and  regular  base  of  supplies,  in  which  case  the  neu- 
tral state  would  render  itself  liable  to  damages  for  any  in- 
jury that  might  result  to  one  of  the  belligerents. 

The  charges  that  Chinese  brigands  were  commanded  by 
Japanese  officers  and  enrolled  in  the  Japanese  army  and 
that  Japanese  military  instructors  were  with  the  Chinese 
troops  on  the  northern  frontier  of  China,  were  declared  by 
Japan  to  be  without  any  foundation  whatever.  In  its  reply 
of  January  24,  1904,  to  Secretary  Hay's  communication 
calling  attention  to  the  Russian  charges  that  the  Chinese 
were  violating  neutrality,  the  Government  of  China  alleged 
that  the  Chunchuses  were  "enlisted  first  by  the  Russians  as 
frontier  guards"  and  that  "they  fought  against  the  Japanese 
army."  With  respect  to  the  possible  enlistment  of  some  of 
these  brigands  in  the  Japanese  army,  the  reply  pertinently 
states,  "that  is  a  matter  for  the  belligerents,  in  the  opinion 
of  the  Chinese  Government.  The  subjects  of  a  neutral 
power  have  the  right  as  private  citizens  to  enlist  in  a  for- 
eign army.  This  is  an  established  fact  in  the  law  of  nations 
for  which  China  can  not  be  held  responsible.""^ 

With  respect  to  the  sale  of  iron  ore  to  the  Japanese,  the 

"For  a  fuller  discussion  of  this  subject  of  enlistment,  see  supra,  ch.  2. 


THE    HAY    NOTE    AND    CHINESE    NEUTRALITY  265 

Chinese  Government  claimed  that  the  ore  was  "from  certain 
mines  owned  by  Chinese  merchants,  entirely  separate  from 
the  Government  mines  at  Hunyang,"  and  that  the  transaction 
was  "entirely  between  Japanese  and  Chinese  merchants,  and 
in  fulfillment  of  a  contract  made  in  1900." 

Japan  and  China  both  denied  that  the  Mia-Tao  islands 
were  used  as  a  naval  base  by  Japan,  but  the  Japanese  de- 
clared that  Russia  had  so  used  the  islands.  We  are  not  in  a 
position  to  pronounce  upon  these  alleged  facts,  but  it  would 
seem  that  for  administrative  purposes  these  islands  were 
held  by  the  Chinese  Government  to  be  an  appurtenance  of 
the  adjoining  portion  of  the  Liao-tung  Peninsula.  This 
would  make  the  use  of  these  islands  by  the  Japanese  navy 
a  venial  offense.  If  they  had  any  value  as  a  naval  base,  their 
proximity  to  the  theater  of  naval  operations  would  have 
made  the  temptation  to  use  them  for  military  purposes  too 
strong  to  be  resisted. 

The  charges  of  Japan  and  China  against  Russia  are,  with 
the  exception  of  the  Ryeshitelni  incident,  more  serious  than 
those  of  Russia  against  China  and  Japan,  although  they 
were  hardly  of  such  a  character  as  to  have  justified  Japan 
in  violating  her  agreement  with  the  Powers,  or  to  have 
called  for  intervention.  The  most  serious  charge  is  that 
which  relates  to  the  violation  of  the  neutrality  of  Niu- 
Chwang  and  the  neutral  zone  west  of  the  Liao  River.  As 
stated  above,  this  region  is,  indeed,  an  integral  portion  of 
Manchuria,  which,  by  the  common  consent  of  all  concerned, 
was  exempted  from  the  application  of  the  principles  of  the 
Hay  Note  (at  least  so  far  as  the  neutrality  of  China  was 
concerned)  ;  but  it  seems  to  have  been  wholly  evacuated  by 
the  Russians  prior  to  the  outbreak  of  the  war  and  to  have 
been  included  by  China  in  her  Declaration  of  Neutrality. 


266  THE    RUSSO-JAPANESE    WAR 

Japan  appears  to  have  respected  the  neutrahty  of  this  dis- 
trict, but  Russia  was  charged  by  the  Japanese  with  the 
maintenance  of  a  large  force,  and  by  the  Chinese  with  the 
building  of  bridges,  the  encampment  of  troops,  and  the 
forced  sale  of  provisions  in  this  territory.  In  a  raid  upon 
the  Japanese  southwest  of  Liao-Yang  and  a  descent  upon 
Niu-Chwang  early  in  the  year  1905,  General  Mischenko 
and  his  Cossack  cavalry  likewise  appear  to  have  violated 
the  neutrality  of  this  region,  which  could,  therefore,  no 
longer  be  regarded  as  outside  the  theater  of  war  or  area  of 
hostilities.  The  same  arguments  apply  here  that  have  been 
urged  in  the  case  of  the  Mia-Tao  islands.  This  district  ap- 
pears on  the  map  as  a  part  of  the  province  of  Sheng-king, 
the  southern  province  of  Manchuria,  and  its  proximity  to 
the  theater  of  war  made  the  temptation  to  use  it  for  military 
purposes  well-nigh  irresistible. 

The  erection  and  use  of  a  wireless-telegraphy  station  at 
Che-Foo  by  the  Russians  for  the  purpose  of  communication 
with  Port  Arthur,  which  seems  to  have  been  permitted  by 
the  Chinese  authorities  until  the  end  of  August,  1904  (when 
the  station  was  demolished  by  the  Chinese),  shows  that  the 
Chinese  Government  was  at  first  either  ignorant  of  the  obli- 
gations of  neutrality  in  this  respect  or  too  lax  in  enforcing 
them.  This  was  undoubtedly  a  case  of  the  use  of  neutral 
territory  by  a  belligerent  for  a  military  purpose ;  but  the  use 
of  wireless  telegraphy  stations  on  neutral  territory  raises  a 
new  question  in  International  Law  which  must  be  decided 
by  the  analogy  of  the  law  relating  to  submarine  cables 
(which  is  also  of  comparatively  recent  origin),  so  that  the 
Chinese  should  not  be  judged  too  harshly  in  this  matter. 
If  the  Japanese  could  prove  that  they  were  seriously  in- 
jured by  the  transmission  of  wireless  messages  between 


THE    HAY    NOTE    AND    CHINESE    NEUTRALITY  267 

Che-Foo  and  Port  Arthur,  they  would  probably  be  entitled 
to  damages. 

The  Japanese  also  seemed  to  think  that  they  had  a  serious 
grievance  in  the  delay  of  the  Mandjiir  to  disarm  at  Shang- 
hai during  the  first  two  months  of  the  war,  but  the  rule  of 
International  Law  which  has  generally  been  supposed  to 
govern  such  cases  is  by  no  means  as  clear  and  undoubted  as 
the  Japanese  appear  to  have  imagined.  It  is  true  that  a 
series  of  new  precedents  was  created  during  this  war  in 
favor  of  the  view  that  belligerent  armed  vessels  remaining 
or  seeking  refuge  in  neutral  ports  ought  to  be  dismantled 
and  disarmed,  and  their  crews  paroled  or  detained  until  the 
end  of  the  war,  as  in  the  analogous  case  of  defeated  or  fugi- 
tive troops  seeking  refuge  from  pursuit  on  neutral  territory 
in  warfare  on  land.^^  It  is  also  doubtless  true  that  the 
conduct  of  the  Chinese  Government  was  weak  and  vacillat- 
ing in  the  case  of  the  Mandjiir,  and  still  more  so  in  the  later 
cases  of  the  Askold  and  Grosvoi;  but  it  is  only  within  re- 
cent years  that  neutral  governments  have  become  more  fully 
alive  to  their  neutral  duties  in  these  respects,  and  of  all 
states  China  could  hardly  be  expected  to  create  precedents 
or  prefer  the  new  to  the  old. 

Our  review  of  the  most  important  examples  of  alleged 
violations  of  Chinese  neutrality,  whether  by  the  belligerents 
or  by  China  herself,  has  shown  us  how  trivial,  and  even 
puerile,  comparatively  speaking,  most  of  these  charges  real- 
ly are.  The  very  insignificance  and  triviality  of  many  of 
them  prove  that,  considering  all  the  conditions  in  which  she 
found  herself  and  the  circumstances  by  which  she  was  sur- 
rounded,  China  was  reasonably  successful   in  the  mainte- 

"  See  supra,  pp.  211  n.  and  216. 


268  THE    RUSSO-JAPANESE    WAR 

nance  of  her  neutrality  and  the  performance  of  her  neutral 
duties.  In  any  case,  she  deserved  to  be  treated  with  great 
leniency,  especially  by  Russia,  because  of  the  serious  diffi- 
culties of  her  anomalous  position  and  her  military  and  ad- 
ministrative weakness.  For  this  weakness  and  these  diffi- 
culties Russia  was,  in  a  measure,  responsible.  None  of  the 
alleged  violations  of  Chinese  neutrality  were  of  such  a  se- 
rious or  dangerous  character  that  they  might  not  have  been 
settled  by  diplomacy  or  arbitration,  or,  as  Secretary  Hay 
suggested  in  a  note  to  Count  Cassini,  by  a  Conference  of  the 
Powers.  In  international,  as  well  as  in  other  relations,  pre- 
vention is  often  better  than  cure,  and  the  Hay  Note,  backed 
up  by  subsequent  representations,  must  be  held  to  have  at 
least  contributed  toward  the  prevention  of  serious  viola- 
tions of  Chinese  neutrality  and  to  have  thereby  aided  in  pre- 
venting serious  international  complications  leading  to  a  pos- 
sible international  catastrophe.  The  threat  of  Russia  to  ab- 
solve herself  from  her  agreement  with  the  Powers  by  an 
ex  parte  decision  of  all  questions  relating  to  Chinese  neu- 
trality was  pretentious  and  absurd  and  might,  if  not  resisted, 
have  led  to  such  a  catastrophe. 


CHAPTER  X 

Russian  and  Japanese  Rules  of  Warfare 

On  February  28,  1904,  the  Russian  Government  issued 
an  Imperial  Order  laying-  down  the  following-  rules  of  war- 
fare to  be  observed  by  Russia  during  the  war : 

1.  Japanese  subjects  are  authorized  to  continue,  under  the 
protection  of  Russian  law,  to  reside  and  to  follow  peaceful  call- 
ings in  the  Russian  Empire,  except  in  the  territories  forming 
part  of  the  Imperial  Lieutenancy  in  the  Far  East. 

2.  Japanese  merchant-vessels  which,  at  the  time  of  the  dec- 
laration of  war,  happened  to  be  in  Russian  ports  and  harbors, 
are  authorized  to  remain  there  before  putting  to  sea  with 
cargoes  not  being  articles  contraband  of  war,  for  such  period 
as  may  be  necessary  in  proportion  to  their  loading  require- 
ments, but  which  shall  in  no  case  exceed  forty-eight  hours, 
counting  from  the  moment  that  the  present  declaration  is  pub- 
lished by  the  local  authorities. 

3.  Subjects  of  neutral  states  may  continue  without  hin- 
drance their  commercial  relations  with  Russian  ports  and 
towns,  provided  that  they  conform  to  the  laws  of  the  Empire, 
and  to  the  principles  of  the  law  of  nations. 

4.  The  military  authorities  are  bound  to  take  all  neccssarv 
measures  to  secure  freedom  for  the  lawful  trade  of  neutrals  so 
far  as  is  compatible  with  war-like  operations. 

5.  The  following  rules  are  to  be  observed  with  regard  to 
neutral  commerce : 

(i)  The  neutral  flag  covers  enemy's  goods,  with  the  excep- 
tion of  contraband  of  war. 

(2)  Neutral  goods,  with  the  exception  of  contraband  of 
war,  may  not  be  seized  under  the  enmy's  flag. 


270  THE    RUSSO-JAPANESE    WAR 

(3)  Blockade,  in  order  to  be  binding,  must  be  effective ;  that 
is  to  say,  it  must  be  maintained  by  a  force  really  sufficient  to 
prevent  access  to  the  enemy's  coast. 

6.  (Enumerates  articles  deemed  to  be  contraband  of  war. 
See  supra,  ch.  6.) 

7.  The  following  acts,  forbidden  to  neutrals,  are  assimilated 
to  contraband  of  war :  The  transport  of  enemy's  troops,  of  his 
dispatches  and  correspondence,  the  supply  of  transports  and 
war-ships  to  the  enemy.  Neutral  vessels  captured  in  the  act 
of  carrying  contraband  of  this  nature  may,  according  to  cir- 
cumstances, be  seized,  and  even  confiscated. 

8.  The  Imperial  Government  reserve  to  themselves  the  right 
to  depart  from  the  above-mentioned  regulations  in  regard  to 
an  enemy  or  neutral  state  which,  on  its  side,  does  not  observe 
them,  as  well  as  to  take  the  necessary  measures  in  accordance 
with  special  circumstances  of  each  specific  case. 

9.  The  detailed  regulations  which  the  military  authorities 
are  bound  to  observe  during  naval  warfare  are  set  forth  in  the 
"Reglement"  relating  to  prizes  sanctioned  by  His  Majesty,  the 
Emperor,  on  the  27th  of  March,  1895,  as  well  as  in  the  special 
instructions  approved  by  the  Admiralty  Council  on  the  20th  of 
September,  1900,  relating  to  stoppage,  visit,  capture,  transport, 
and  delivery  of  captured  vessels  and  goods. 

10.  In  addition,  the  military  authorities  are  bound  to  con- 
form to  the  following  International  Agreements  signed  by 
Russia : 

(i)  The  Geneva  Convention  of  the  loth  (22d)  August, 
1864,  for  the  amelioration  of  the  condition  of  the  wounded  in 
time  of  war. 

(2)  The  Declaration  of  St.  Petersburg  of  the  29th  Novem- 
ber (nth  December),  1868,  respecting  the  prohibition  of  the 
use  of  explosive  projectiles. 

(3)  Agreements  signed  at  the  International  Peace  Confer- 
ence at  the  Hague,  the  17th  (29th)  July,  1899,  and  ratified  by 
Plis  Majesty,  the  Emperor,  the  6th  May,  1900. 

(a)  Convention  with  respect  to  the  laws  and  customs  of 
war  by  land. 


RULES    OF    WARFARE  27I 

(b)  Convention  for  adapting-  to  maritime  warfare  the  prin- 
ciples of  the  Geneva  Convention  of  the  loth  (22d)  August, 
1864. 

(c)  Declaration  relating  to  the  prohibition  of  the  use,  for  a 
period  of  five  years,  of  projectiles  and  explosives  dropped  from 
balloons  or  by  means  of  other  similar  new  methods. 

(d)  Declaration  relating  to  the  prohibition  of  the  use  of 
projectiles  which  are  only  intended  to  spread  asphyxiating  or 
noxious  fumes. 

(e)  Declaration  relative  to  the  prohibition  of  the  use  of 
bullets  which  expand  or  flatten  easily  in  the  human  body,  such 
as  bullets  with  hard  casing,  of  which  the  casing  does  not  en- 
tirely cover  the  core,  or  is  provided  with  notches.^ 

On  July  14,   1904,  the  following  "Instructions^  to  the 

*  Reprinted  from  the  Parliamentary  Blue  Book  on  Russia,  No.  i 
(1905),  pp.  4-5. 

°  For  the  French  version  from  which  this  translation  has  been  made, 
see  Archives  Diplomatiques,  t.  94,  3d  serie.*,  Vol.  II  (1905),  pp.  500  ff. 
There  were  also  distributed  to  the  Russian  armies  the  following  texts : 
that  of  the  Convention  of  Geneva  of  1864;  the  Declaration  of  St.  Peters- 
burg of  1868;  and  the  "Regulations  Respecting  the  Laws  and  Customs 
of  War  on  Land"  of  the  Hague  Conference  of  1899,  together  with  the 
three  Declarations  thereto  annexed.  See  Holls,  Peace  Conference,  ch. 
4  and  Appendix  I,  pp.  423-463,  for  the  Hague  Regulations.  Art.  I  of 
the  Second  Hague  Convention  (Holls,  pp.  139  and  419),  to  which  the 
Regulations  are  merely  an  annex,  declares  that  the  "High  Contracting 
Parties  shall  issue  instructions  to  their  armed  land  forces,  which  shall 
be  in  conformity  with  the  'Regulations  Respecting  the  Laws  and  Cus- 
toms of  War  on  Land'  annexed  to  the  present  Convention."  It  is  thus 
not  quite  clear  whether  the  Hague  Regulations  are  in  themselves  binding 
upon  the  "High  Contracting  Parties"  or  not.  M.  Ren^ault,  the  Chairman 
and  Reporter  of  the  Second  Committee  of  the  Hague  Conference,  was 
of  the  opinion  that  they  are  obligatory,  in  spite  of  the  somewhat  peculiar 
mode  of  their  adoption — a  procedure  which,  as  it  seems,  was  adopted  so 
as  not  to  arouse  opposition  on  the  part  of  certain  delegates  who  ap- 
peared to  doubt  the  propriety  of  giving  formal  sanction  to  a  body  of 
rules  which  by  their  very  restrictions  implied  the  recognition  of  certain 
belligerent  rights.  The  Russian  De  Martens,  on  the  other  hand,  spoke  of 
the  Hague  Regulations  as  forming  the  "solid  basis  for  the  instructions 
which  the  Governments  should  hereafter,  in  case  of  war,  issue  to  their 


2/2  THE    RUSSO-JAPANESE    WAR 

Russian  Army  Respecting  the  Usages  and  Customs  of  Con- 
tinental War"'  were  ratified  by  the  Czar : 

I 

INSTRUCTIONS   TO   OFFICERS 

(i)    Belligerents 

1.  In  time  of  war  the  regular  troops  of  the  enemy,  the 
militia  and  the  volunteer  corps  are  considered  as  belligerents. 

2.  Volunteer  corps  and  miUtia  should  be  considered  as 
belligerents  only  if  they  are  commanded  by  a  leader  responsi- 
ble for  his  subordinates,  if  they  have  very  distinctive  external 
badges,  if  they  carry  arms  openly,  and  if  they  observe  the  laws 
and  customs  of  war  in  their  operations. 

3.  The  inhabitants  of  an  enemy  country  who  have  taken 
up  arms  upon  the  approach  of  our  army,  but  who  have  not 
had  sufficient  time  to  organize  themselves  into  volunteer  corps, 
may  be  considered  as  belligerent  if  they  observe  the  laws  and 
customs  of  war  in  their  operations.^ 

(2)    Non-Belligerents  (Les  N^eittres)* 

4.  Field  ambulances  and  military  hospitals  are  recognized 
as  neuter  (non-belligerent,  inviolable),  but  only  at  a  time  when 
there  are  sick  or  wounded  in  them, 

arms  on  land."  HoUs,  p.  136.  See  especially  the  comments  of  Fillet, 
Les  Lois  Actuelles  de  la  Guerre.  2d  ed.,  pp.  452  ff.  Holland  {The  Laws 
and  Customs  of  War  on  Land,  p.  2)  appears  to  be  of  the  opinion  that 
the  text  is  not  binding. 

^  These  articles  correspond  almost  literally  with  Arts,  i  and  2  of  the 
Hague  Regulations,  and  with  Arts.  9  and  10  of  the  Rules  of  the  Brussels 
Conference.  Art.  3  of  the  Hague  Regulations  (or  Art.  11  of  the  Rules 
of  the  Brussels  Conference),  which  provides  that  non-combatants  as 
well  as  combatants  are  to  be  treated  as  prisoners  of  war  in  case  of  cap- 
ture, is  omitted  in  the  Russian  "Instructions." 

*  The  instructions  under  this  head  are  based  upon  Arts.  1-4  and  Art.  7 
of  the  Geneva  Convention  of  1864.    For  Arts.  5  and  6  of  the  Geneva 


RULES   OF    WARFARE  273 

This  neutrality  ceases  if  the  ambulances  or  hospitals  are 
guarded  by  a  military  force. 

5.  Convoys  of  wounded  and  all  persons  indispensable  for 
conveying  them  enjoy  the  right  of  neutrality, 

6.  The  entire  sanitary  personnel  of  field  ambulances  and 
hospitals,  namely,  physicians,  officials,  nurses,  the  attaches  of 
sanitary  convoys,  army  chaplains,  enjoy  the  privilege  of  neu- 
trality during  the  exercise  of  their  duties. 

7.  The  persons  mentioned  in  the  preceding  article  are  free 
to  continue  the  exercise  of  their  duties  and  to  rejoin  their  army 
during  the  occupation  of  the  enemy's  country  by  our  army. 

The  authorization  to  rejoin  their  army  must  emanate  from 
the  corps  commander.  These  persons  are  to  be  escorted  to  the 
enemy's  outposts. 

The  movables  of  field-hospitals  and  pest-houses  remain  in 
the  possession  of  the  occupying  army ;  this  is  why  the  persons 
attached  to  these  services  of  sanitation  may,  in  leaving,  take 
with  them  only  their  personal  belongings. 

It  is  forbidden,  however,  to  take  possession  of  the  furnish- 
ings of  an  ambulance  designed  to  follow  the  troops  upon  the 
battle-field. 

8.  Hospitals,  pest-houses  and  convoys  of  wounded  soldiers 
shall  carry  the  Red  Cross  flag. 

The  entire  medical  and  sanitary  personnel  of  these  services 
shall  wear  a  white  arm  badge  marked  with  a  red  cross. 

(3)    The  Rights  and  Duties  of  Belligerents 

9.  The  troops  should  respect  the  life  and  honor  of  the  in- 
habitants of  the  enemy's  country,  their  property  and  family 
rights,  and  also  their  religion  and  their  creed. 

10.  They  are  permitted  to  take  possession  of  movables  be- 
longing to  the  belligerent  state  and  serving  a  military  pur- 
pose, such  as  money,  stores  of  arms  and  ammunition,  material 
for  dressing  wounds,  etc. 

Convention,  see  Arts.  21-24  of  the  "Instructions."    For  the  text  of  the 
Geneva  Convention,  see  Wilson  and  Tucker,  App.  IV,  pp.  395  ff. 


274  THE   RUSSO-JAPANESE    WAR 

Beyond  this,  the  troops  may  take  possession  of  material  for 
railways,  telegraphs,  telephones,  steamboats  and  other  vessels, 
as  also  of  military  stores  belonging  to  companies  or  to  indi- 
viduals. 

11.  In  the  course  of  military  operations,  the  following 
things  are  prohibited : 

(a)  the  use  of  poison  or  of  poisoned  arms,  with  intent  to  in- 
jure the  enemy,  as  also  the  use  of  arms,  machines,  and  mate- 
rials which  may  cause  useless  suffering; 

(b)  to  declare  that  no  quarter  will  be  given ; 

(c)  to  make  an  unlawful  use  of  a  flag  of  truce  or  of  the  na- 
tional flag,  of  military  signals,  or  of  the  enemy's  uniform ; 

(d)  to  show,  in  order  to  deceive  the  enemy,  the  flag  or  badge 
of  the  Red  Cross  ; 

(e)  to  destroy  or  to  take  possession  of  things  belonging  to 
the  enemy  with  the  exception  of  those  cases :  ( i )  mentioned  in 
Art,  lo;  and  (2)  when  military  considerations  demand  it; 

(f)  to  attack  and  bombard  towns,  villages,  habitations  and 
buildings  not  occupied  by  the  enemy  or  by  his  stores  of  war 
material ; 

(g)  to  pillage  inhabited  places,  even  those  taken  by  assault. 

12.  All  pillage  is  rigorously  prohibited  under  penalty  of  the 
severest  punishment  (the  penalty  of  death  being  included). 

13.  The  capture,  destruction,  or  premeditated  injury  of 
property  of  institutions  devoted  to  purposes  of  religion,  benefi- 
cence, education,  art  and  science,  as  also  of  historical  monu- 
ments, are  prohibited. 

14.  It  is  the  duty  of  the  commander  of  a  detachment  to  an- 
nounce to  its  inhabitants  his  intention  to  bombard  a  place,  un- 
less the  necessities  of  war  prevent  such  a  course  {e.  g.,  in  the 
case  of  a  sudden  or  an  unexpected  attack). 

15.  During  sieges  and  bombardments  measures  should  be 
taken  to  preserve,  as  far  as  possible,  the  temples  and  the  edifices 
used  as  museums,  schools,  asylums,  hospitals,  or  edifices  used 
for  sheltering  the  wounded,  provided  said  places  are  not  used 
at  the  same  time  for  military  purposes. 


RULES    OF    WARFARE  275 

All  the  places  above  mentioned  should  be  marked  by  special 
signs  which  should  be  made  known  to  the  besieger  in  time. 

16.  It  is  forbidden  to  force  the  population  of  occupied  ter- 
ritory to  take  part  in  military  operations  against  their  own 
country,  as  also  to  compel  them  to  take  the  oath  of  allegiance 
to  a  hostile  power. 

17.  Contributions  (payments  in  money)  can  only  be  ex- 
acted by  virtue  of  an  order  from  the  commander-in-chief  of  the 
army.  The  troops  are  required  to  give  receipts  for  such  pay- 
ments. 

18.  Requisitions  (compulsory  supplies)  in  kind  or  in 
services  can  only  be  imposed  on  the  population  upon  the  author-» 
ization  of  the  commander-in-chief  of  the  army  or  of  the  chief 
of  the  military  administration  of  the  district  commanding,  ad 
interim,  the  troops  of  the  district,  and,  in  case  of  urgency,  upon 
the  authorization  of  the  corps  or  division  commander. 

19.  The  services  should  not  be  of  such  a  nature  as  to  oblige 
the  local  population  to  take  part  in  the  military  operations 
against  their  country. 

20.  The  supplies  and  services  arc  to  be  paid  for  as  far  as 
possible  in  cash ;  otherwise  the  troops  are  expected  to  give 
receipts  (signed  and  sealed  by  the  chiefs  of  detachments  and 
companies).^ 

"  The  above  rules  comply  in  a  general  way  with  the  requirements  of 
the  Regulations  of  the  Hague  Convention  contained  in  Arts.  23-29  and 
42-57.  They  are  more  specific  in  some  cases  and  less  so  in  others.  On 
the  whole,  it  must  be  said  that  the  Russian  "Instructions"  fall  somewhat 
short  of  the  requirements  of  the  Hague  Convention,  especially  in  the 
omission  of  Arts.  42,  43  and  48  of  the  Hague  Regulations  relating  to  the 
law  of  military  occupation.  Arts.  17  and  18  of  the  "Instructions"  must 
be  pronounced  very  unsatisfactory  and  inadequate  in  view  of  the  fact 
that  it  is  not  stated  that  war  requisitions  and  contributions  should  not  be 
in  excess  of  military  necessity  and  that  requisitions  "must  be  in  propor- 
tion to  the  resources  of  the  country."  See  Arts.  49  and  52  of  the  Hague 
Regulations.  The  substitution  of  the  word  "occupied"  for  "defended" 
in  Art.  11  f  of  the  "Instructions"  (see  Art.  25  of  the  Hague  Rcpulations) 
may  be  an  oversight  or  an  error,  but  it  changes  considerably  the  scope 
of  the  right  of  bombardment. 


^yd  THE    RUSSO-JAPANESE    WAR 

(4)    The  Wounded 

21,  Siek  and  wounded  soldiers  are  to  be  gathered  regard- 
less of  the  army  to  which  they  belong. 

22.  The  exchange  of  the  wounded  can  only  take  place  upon 
the  authorization  of  the  commander-in-chief  of  the  army,  and 
in  accordance  with  an  understanding  arrived  at  between  the 
two  belligerents. 

The  convalescent  sick  and  wounded  of  the  hostile  army,  after 
their  complete  recovery,  shall  be  sent  back  to  their  own  coun- 
try, if  they  are  regarded  as  unfit  for  service ;  the  others  can  only 
be  returned  on  condition  that  they  promise  not  to  take  up  arms 
again  during  the  war. 

2'i^.  The  commander  of  the  troops  should  instruct  the  inhabi- 
tants that  it  is  their  duty  to  lend  succor  to  the  wounded  of 
both  belligerents ;  those  of  the  inhabitants  who  accept  the 
wounded  are  exempt  from  the  obligation  of  quartering  sol- 
diers, and  also  from  a  part  of  the  war  contribution. 

24.  After  a  battle,  the  chiefs  of  detachments  and  the  mili- 
tary authorities  are  required  to  take  such  measures  as  may  be 
necessary  to  prevent  our  wounded,  as  also  those  of  the  enemy, 
remaining  upon  the  battle-field,  from  being  plundered.  Those 
who  are  found  guilty  of  forcibly  plundering  the  wounded  shall 
be  judged  as  though  guilty  of  an  act  of  brigandage.® 

'  Arts.  21,  22  and  23  of  the  above  "Instructions"  correspond  in  the 
main  to  Arts.  5  and  6  of  the  Geneva  Convention  of  1864.  The  Additional 
Articles  of  1868  are  not  binding,  as  they  never  received  the  formal  sanc- 
tion of  the  Powers.  Besides,  it  is  generally  conceded  that  they  are  de- 
fective and  deficient  in  some  respects.  The  principles  of  the  Geneva 
Convention  of  1864  were  adapted  to  the  needs  of  maritime  warfare  by 
the  Hague  Conference  of  1899.  See  Holls,  ch.  4,  pp.  121-131  and  pp.  463- 
473.  These  Conventions  still  remain  the  sole  source  of  international 
legislation  on  the  subjects  of  which  they  treat.  Among  the  pious  wishes 
{vceux)  expressed  by  the  Hague  Conference  was  one  for  the  assem- 
bling, in  the  near  future,  of  a  special  Conference  having  for  its  object 
the  revision  of  the  Geneva  Convention  of  1864.   Holls,  p.  yjT- 

Article  24  of  the  Russian  "Instructions,"  which  is  strongly  to  be  com- 
mended, contains  nothing  in  excess  of  what  is  required  by  military 
discipline  as  well  as  by  International  Law. 


RULES    OF    WARFARE  2// 

(5)    Prisoners  of  War 

25.  Non-combatants,  as  well  as  combatants,  may  be  made 
prisoners ;  both  are  regarded  as  prisoners  of  war. 

26.  If  made  prisoners  and  it  is  found  necessary  to  detain 
them,  newspaper  correspondents,  sutlers,  contractors,  etc.,  who 
are  provided  with  certificates  from  the  military  authorities  of 
the  army  to  which  they  are  attached,  shall  enjoy  the  rights  of 
prisoners  of  war. 

27.  The  duties  of  receiving,  maintaining,  and  guarding  the 
prisoners,  as  also  their  convoy,  falls  upon  the  corps  com- 
manders, and  are  to  be  performed  under  the  direction  of  the 
stafif  officers  of  the  corps. 

28.  Prisoners  of  war  should  be  treated  with  humanity,  and 
they  should  be  allowed  entire  freedom  of  worship.  They  shall 
be  subject  to  the  same  treatment  as  that  given  to  soldiers  of 
the  Russian  army. 

29.  Every  prisoner  is  bound  to  declare  his  true  name  and 
rank ;  in  case  of  violation  of  this  rule,  he  must  submit  to  a  re- 
striction of  the  privileges  reserved  for  prisoners  of  his  class. 

30.  Prisoners  of  war  are  subject  to  the  laws,  regulations, 
and  ordinances  in  force  in  the  army  which  has  captured  them ; 
and,  in  case  of  insubordination,  severe  measures  may  be  ap- 
plied to  them. 

31.  The  commander  of  the  armed  detachment  v/hich  forms 
the  convoy  of  the  prisoners  is  considered  the  chief  of  sentry 
and  he  should  conform  to  the  regulations  for  garrisons  (Arti- 
cles 198-210). 

32.  All  their  personal  belongings,  except  arms,  horses,  and 
military  papers,  shall  remain  the  property  of  the  prisoners. 

33.  A  prisoner  who  has  succeeded  in  escaping  should  not  be 
punished  in  case  he  is  made  prisoner  a  second  time;  but  the 
surveillance  shall  be  made  more  rigorous. 

34.  Escaped  prisoners,  who  are  recaptured  before  having  re- 
joined their  army,  are  merely  liable  to  disciplinary  punishment 
for  having  escaped. 


278  THE    RUSSO-JAPANESE    WAR 

35.  The  wills  of  prisoners  are  to  be  drawn  up  and  preserved, 
in  conformity  with  the  common  law. 

36.  In  case  of  the  death  of  a  prisoner  of  war,  a  record  of  it 
shall  be  made  and,  at  the  time  of  the  obsequies,  proper  regard 
shall  be  paid  to  his  rank  and  titles.'^ 

(6)    Bearers  of  Flags  of  Truce 

37.  Every  person  who  is  authorized  by  one  of  the  belliger- 
ents to  carry  a  white  flag  and  to  enter  into  communication  with 
the  other  belligerent,  is  considered  a  bearer  of  a  flag  of  truce. 

The  bearer  of  a  flag  of  truce  and  his  suite  are  inviolable, 
namely:  (a)  the  trumpeter  (drummer,  bugler)  ;  (b)  the  flag- 
bearer;  (c)  the  interpreter. 

38.  The  commander  to  whom  the  bearer  of  a  flag  of  truce 
is  sent  shall  decide  whether  to  receive  him  or  not. 

39.  All  necessary  measures  may  be  taken  to  prevent  the 
bearer  of  a  flag  of  truce  from  taking  advantage  of  his  mission 
to  obtain  information. 

^  The  above  "Instructions"  regarding  tfie  treatment  of  prisoners  of  war 
are,  generally  speaking,  in  conformity  with  the  requirements  of  the 
Hague  Regulations  (Arts.  4-21)  ;  but  they  are  less  detailed,  and  there 
are  some  omissions.  For  example,  there  is  nothing  said  as  to  the  labor 
and  wages  of  prisoners  (see  Art.  6  of  the  Hague  Regulations),  and 
there  is  no  provision  for  the  organization  of  a  Bureau  of  Information 
such  as  is  provided  for  by  the  Hague  Convention.  (See  Arts.  14-17.) 
This  omission  led  to  considerable  complaint  during  the  war  on  the  part 
of  the  Japanese,  who  scrupulously  observed  all  the  requirements  of  the 
Hague  Convention. 

On  the  proper  treatment  of  prisoners  of  war,  see  also,  for  purposes  of 
comparison,  the  American  "Instructions,"  Arts.  49-50,  56,  72-82,  105- 
iio,  119-133;  the  Rules  of  the  Brussels  Conference,  Arts.  23-35;  the 
Oxford  Code  or  Manual  adopted  by  the  Institute  of  International  Law, 
Arts.  21-22  and  61-78 ;  and  the  French  Reglement  du  21  Mars,  1893,  sur 
les  prisonniers  de  guerre.  The  French  Regulations,  which  are  the  most 
liberal  and  detailed  I  have  seen  dealing  with  this  subject,  are  printed  in 
the  Revue  Generate  de  Droit  International  Public  for  1894,  Documents, 
pp.  10-30.  The  other  documents  may  be  found  in  the  appendices  to 
Snow's  Cases  and  to  Wilson  and  Tucker's  International  Lazv. 


RULES    OF    WARFARE  279 

If  it  be  observed  that  the  bearer  of  a  flag  of  truce  is  guilty 
of  such  abuse,  he  may  be  detained  provisionally. 

40.  The  bearer  of  a  flag  of  truce  loses  the  right  of  personal 
inviolability  if  it  be  proven  that  he  has  taken  advantage  of  his 
privileged  position  to  provoke  treachery. 

41.  The  act  of  raising  a  white  flag  during  a  battle  should 
not  stop  the  military  operations ;  but  the  bearer  of  the  white 
flag  and  his  suite  should  not  be  fired  upon.  When  the  bearer 
of  a  flag  of  truce  approaches  our  fighting  lines,  he  must  be  di- 
rected to  the  chief  to  whom  he  is  sent  or  to  a  superior  com- 
mander. It  is  only  when  the  enemy's  troops  lay  down  their 
arms  or  fulfill  the  conditions  stipulated  for  that  the  battle  shall 
cease.® 

(7)    Spies 

42.  An  individual  who,  acting  secretly  or  under  false  pre- 
tenses, tries  to  obtain  any  information  in  the  zone  of  our  opera- 
tions with  the  intention  of  communicating  it  to  the  enemy,  is 
considered  a  spy. 

43.  Spies  can  only  be  punished  in  pursuance  of  a  sentence. 

44.  The  following  are  not  considered  spies : 

(i)  soldiers  not  in  disguise  who  have  penetrated  into  the 
zone  of  operations  of  the  belligerent  to  obtain  information ; 

(2)  soldiers  or  civilians  who  carry  out  their  mission  openly 
and  are  charged  with  transmission  of  dispatches  destined  either 
for  their  own  army  or  for  that  of  the  enemy ; 

(3)  persons  sent  in  balloons  to  maintain  communications  be- 
tween the  various  parts  of  an  army  or  a  territory.* 

'C/.  Arts.  32-34  of  the  Hague  Regulations.  Art.  41  of  the  Russian 
"Instructions"  is  not  included  in  the  Hague  Regulations;  but  Art.  112  of 
the  American  "Instructions"'  states  that  "firing  is  not  required  to  cease 
on  the  appearance  of  a  flag  of  truce  in  battle."  The  O.xford  Code  (Art. 
29),  the  Rules  of  the  Brussels  Conference  (.A.rt.  44).  and  the  Hague 
Regulations  (Art.  33)  all  state  that  "the  commander  to  whom  a  flag  of 
truce  is  sent  is  not  obliged  to  receive  him  under  all  circumstances." 

'  Cf.  Arts.  29-31  of  the  Hague  Regulations.  Art.  31  of  the  Hague 
Regulations  is  omitted.    It  provides  that  a  spy,  who  has  rejoined  his 


28o  THE    RUSSO-JAPANESE    WAR 

II 

INSTRUCTIONS    TO    NON-COMMISSIONED    OFFICERS    AND    SOLDIERS 

1.  You  are  to  wage  war  with  the  troops  of  the  enemy  and 
not  with  the  peaceable  inhabitants. 

The  inhabitants  of  the  enemy  country  may  also  be  enemies, 
but  only  in  case  they  are  seen  with  arms  in  their  hands. 

2.  Strike  the  enemy  in  loyal  combat.  Do  not  strike  the  en- 
emy who  is  disarmed  and  who  begs  for  quarter. 

3.  Respect  foreign  religions  and  temples. 

4.  Do  not  injure  the  peaceable  inhabitants  of  the  enemy 
country;  do  not  take  away  nor  injure  their  goods,  and  restrain 
your  comrades  from  doing  these  things.  Cruelties  toward  the 
inhabitants  only  increase  the  number  of  our  enemies.  Remem- 
ber that  the  military  man  is  the  soldier  of  Christ  and  of  the 
Czar;  this  is  why  he  should  conduct  himself  like  a  Christian 
soldier. 

5.  After  the  battle  is  ended,  you  should  be  considerate  of 
the  wounded  and  try  to  aid  them  without  distinguishing 
whether  they  are  our  own  people  or  not.  The  wounded  are  no 
longer  enemies. 

6.  Treat  prisoners  with  humanity.  Do  not  rail  at  their  faith ; 
do  not  oppress  them ;  do  not  meddle  with  their  belongings. 

7.  The  plundering  of  prisoners,  and,  still  worse,  of  the 
wounded  and  killed,  is  a  lasting  disgrace  to  an  honest  soldier ; 
one  who  permits  himself  to  commit  such  an  action  is  liable  to 
the  severest  penalties,  as  though  he  had  committed  an  act  of 
brigandage, 

8.  If  prisoners  are  entrusted  to  you,  prevent  people  from 
addressing  them.  If  the  prisoner  attempts  to  escape,  stop  him, 
call  for  aid,  and,  as  a  last  resort,  have  recourse  to  arms. 

9.  Tents  and  houses  in  which  the  wounded  are  kept  are  al- 

army  and  is  subsequently  recaptured,  shall  be  treated  as  a  prisoner  of 
war. 


RULES    OF    WARFARE  28 1 

ways  designated  with  a  white  flag  marked  with  a  red  cross. 
Do  not  fire  upon  these  places,  and  do  not  enter  them  forcibly. 

10.  Do  not  meddle  with  people,  even  those  carrying  the 
enemy's  uniform,  if  they  wear  a  white  arm  badge  marked  with 
the  red  cross,  for  they  take  care  of  the  sick  and  wounded. 

11.  If  you  perceive  an  enemy  carrying  a  white  flag,  do  not 
fire  upon  him,  but  send  him  to  your  chief;  he  is  the  bearer  of 
a  flag  of  truce,  a  person  who  is  inviolable. 

On  February  9,  1904,  the  Japanese  Government  issued 
an  Imperial  Ordinance  exempting  Russian  merchant-ships 
from  capture  in  the  following  cases  :^° 

Art.  I.  Russian  merchant  ships  which  happen  to  be  moored 
in  any  Japanese  port  or  roadstead  at  the  time  of  the  issue  of  the 
present  rules,  may  discharge  or  load  their  cargoes  and  leave 
the  country  not  later  than  February  16,  1904. 

2.  Russian  merchant  ships  which  have  left  Japan  in  accord- 
ance with  the  foregoing  article  shall  not  be  captured  if  they 
can  prove  by  certified  documents  that  they  left  the  ports  and 
roadsteads  of  Japan  after  having  discharged  or  loaded  their 
cargoes  before  the  expiration  of  the  delay  granted  by  the  fore- 
going article,  and  that  they  are  steaming  towards  the  nearest 
Russian  or  leased  port  or  to  their  original  destination.  This 
exemption  shall  not,  however,  apply  in  case  such  a  ship  has 
once  touched  at  a  Russian  port  or  at  a  leased  port. 

3.  Russian  merchant  ships  which  have  left  foreign  ports  or 
roadsteads  for  a  Japanese  port  or  roadstead  before  February 
16  may  enter  our  ports,  discharge  their  cargoes  at  once,  and 
leave  the  country.  Russian  merchant  vessels  coming  under  the 
above  category  shall  be  treated  in  accordance  with  Article  2. 

4.  This  ordinance  shall  not  be  held  to  apply  to  Russian 
merchant  ships  having  on  board  objects  of  which  the  exporta- 

'°  For  the  French  text,  see  M.  H.  Nagaoka  in  Revue  de  Droit  Interna- 
tional et  Leg.  Comp.  for  1904,  pp.  494-95.  For  an  English  translation 
which  I  have  tried  to  correct  with  the  aid  of  the  French  version,  see 
House  Doc,  58th  Congress,  3d  session  (For.  Rel.  1904),  pp.  414-15. 


282  THE   RUSSO-JAPANESE    WAR 

tion  is  forbidden,  whether  persons,  objects  or  documents  of  con- 
traband. 

On  February  10,  1905,  the  Japanese  Minister  of  the  In- 
terior issued  the  following  Instructions^^  to  the  general  Gov- 
ernment of  Tai-wan,  etc. : 

"Having  been  obliged  to  its  great  regret  to  declare  war 
against  the  Russian  Empire,  the  Imperial  Government  (of 
Japan)  by  no  means  intends  to  show  itself  hostile  to  the  sub- 
jects of  that  nation.  Those  among  them  who  actually  happen  to 
be  in  Japanese  territory  will  be  permitted  to  continue  to  reside 
here ;  those  who  shall  come  here  will  not  be  expelled,  and  those 
who  may  wish  to  leave  will  not  be  prevented  from  doing  so. 
They  will  all  be  protected  in  their  lives,  honor,  and  property 
in  accordance  with  the  text  of  our  laws  and  ordinances.  They 
will  be  allowed  to  attend  quietly  to  their  own  affairs  and  to  ask 
for  the  protection  of  the  imperial  tribunals.  This  should,  how- 
ever, be  considered  as  an  act  of  grace  on  the  part  of  the  Im- 
perial Government.  Consequently,  it  will  permit  no  restrictions 
in  the  execution  of  necessary  administrative  acts  of  surveillance 
and  of  measures  taken  by  the  military  or  naval  authorities  for 
military  purposes  and  it  may  in  part  restrict  the  guarantees  in 
respect  to  persons,  their  lives  and  property.  Besides,  it  may 
prohibit  or  limit  travel  or  changes  in  domicile,  if  it  be  con- 
sidered necessary.  Thus,  those  who,  in  spite  of  the  favor 
granted  by  the  Imperial  Government,  serve  their  country  in 
respect  to  its  military  interests,  or  who  threaten  the  safety, 
order,  or  the  good  customs  of  the  Empire,  or  who  commit  any 
other  acts  injurious  to  the  interests  of  the  Empire,  may  be  made 
the  objects  of  special  measures  in  accordance  with  our  laws 

"  See  Nagaoka,  op.  cit.,  pp.  480  ff.  As  Nagaoka  remarks,  these  instruc- 
tions are  very  similar  to  those  given  in  1894  i"  favor  of  Chinese  subjects. 
Although  the  ordinance  of  August  4,  1894,  required  registration  on  the 
part  of  the  Chinese,  this  was  because  of  the  greater  number  of  Chinese 
subjects  in  Japan  at  that  time.  For  the  decree  of  August  4,  1894,  see 
Ariga,  La  Guerre  Sino-Japonaise,  pp.  23-25. 


RULES    OF    WARFARE  283 

and  ordinances,  and  may  even  receive  an  order  to  leave  the 
Empire  at  once.  Those  who,  having  no  means  of  existence, 
are  forced  to  apply  for  public  charity,  may  also  learn  that  they 
are  forbidden  to  reside  in  the  Empire.  In  one  word,  to  every 
subject  of  the  Russian  Empire  residing  in  Japan  there  will  be 
granted  the  greatest  protection  possible  within  limits  not  in- 
jurious to  the  interests  of  the  Empire.  It  will  be  expected  that 
Russian  subjects  be  treated  in  accordance  with  this  spirit  and 
that  care  be  taken  that  Japanese  subjects  do  not  create  misun- 
derstandings upon  this  point." 

The  same  day  (February  lo,  1904)  the  Minister  of  Pub- 
lic Instruction  addressed  a  note  to  the  school  teachers  of 
Japan  in  which  he  asked  them  not  to  encourage  chauvinism 
(jingoism)  and  in  which  he  recommended  the  following 
mode  of  conduct  toward  Russian  subjects  :^^ 

"Although  the  Imperial  Government  is  at  present  at  war  with 
Russia  with  the  purpose  of  later  securing  a  permanent  peace, 
the  students  and  pupils  should  make  it  their  special  aim  to 
show  themselves  in  no  wise  hostile  toward  Russian  subjects. 
Such  hostility  on  their  part  would  give  foreign  nations  a  bad 
opinion  of  us.  Besides,  this  is  an  important  point  to  be  consid- 
ered in  the  education  of  boys  and  girls." 

On  February  19  the  Minister  of  the  Interior,  in  his  in- 
structions to  the  heads  of  the  various  Shinto  and  Buddhist 
sects  in  Japan,  said  in  respect  to  religious  freedom  :^^ 

"Although  diplomatic  relations  between  Japan  and  Russia 
are  suspended,  there  is  no  reason  for  showing  ourselves  hostile 
toward  Russian  subjects  and  especially  should  there  be  no 
change  in  our  attitude  in  respect  to  the  equality  and  liberty  of 
religions.    This  is  an  important  point  to  which  those  who  are 

"  Nagaoka,  op.  cit.,  481. 
"  Ihid. 


284  THE    RUSSO-JAPANESE    WAR 

engaged  in  religious  propaganda  and  mission  work  should  give 
their  careful  attention.  The  heads  of  the  various  faiths  are  re- 
quested to  ask  their  clergy  to  pay  special  attention  to  these  in- 
structions." 

On  February  14,  1904,  the  Japanese  Minister  of  War  is- 
sued a  list  of  "Regulations  Relative  to  the  Treatment  of 
Prisoners  of  War,"  consisting  of  thirty-four  articles.^*  We 
do  not  deem  it  necessary  or  advisable  to  reproduce  them 
here,  partly  because  of  their  length,  but  mainly  because  most 
of  their  important  or  distinctive  features  are  more  clearly 
and  fully  repeated  in  later  "Instructions."  They  provide, 
e.  g.,  that  prisoners  are  to  be  treated  with  humanity  {i.  e., 
not  to  be  maltreated  or  insulted)  and  in  conformity  with 
their  rank  (Arts.  2  and  3)  ;  they  shall  enjoy  liberty  of  con- 
science and  freedom  of  worship  (Art.  5)  ;  if  possible,  they 
shall  have  separate  rooms  in  accordance  with  their  position 
and  rank  (Art.  23)  ;  if  convenient,  they  shall  be  furnished 
with  such  articles  of  use  or  luxury  as  they  may  wish  to  pur- 
chase (Art.  24) ;  sick  and  wounded  prisoners  who  are 
vouched  for  as  incapable  of  further  military  service,  are  to 
be  sent  back  to  their  own  country  on  parole  after  they  have 
been  properly  cared  for  in  hospitals  or  ambulances  (Art. 
28)  ;  all  articles  belonging  to  prisoners  shall  be  returned  to 
them  as  soon  as  they  shall  have  obtained  their  liberty,  and 
all  articles  left  by  deceased  prisoners,  as  also  all  wills,  shall 
be  sent  to  the  Bureau  of  Information  for  prisoners  of  war 
(Arts.  29,  30  and  31)  ;  prisoners  shall  be  permitted  to  re- 
ceive money  or  articles  sent  directly  to  them,  as  also  any 
aid  from  benevolent  associations,  after  proper  precautions 

"  For  the  French  text  of  this  "Reglement,"   see   Nagaoka  in  Revue 
Gencrale  de  Droit  Int.  Pub.  for  1905,  pp.  605  ff. 


RULES    OF    WARFARE  285 

have  been  taken  to  prevent  any  abuse  of  such  privileges 
(Arts.  32  and  33),  etc.  As  may  be  seen  from  the  above 
partial  synopsis  of  their  contents,  these  regulations  were 
conceived  in  the  most  advanced,  humane,  and  liberal  spirit.  ^^ 
On  February  19  the  Japanese  Minister  of  the  Navy  issued 
the  following  additional  Instructions^  °  in  respect  to  the 
treatment  of  prisoners  of  war: 

1.  All  objects  found  in  the  possession  of  enemy  combatants 
made  prisoners  or  who  are  considered  as  such  by  virtue  of 
treaties  or  the  customs  of  war  will  be  examined, 

2.  Arms,  ammunition  and  other  things  of  use  in  war  found 
in  the  possession  of  a  prisoner  will  be  confiscated;  but  every 
other  object  may,  according  to  circumstances,  be  left  in  his  pos- 
session or  taken  away  from  him.^^ 

The  officers  and  civil  functionaries  assimilated  to  officers 
may  also,  according  to  circumstances,  be  allowed  to  keep  their 
sabres  and  other  arms,  on  condition,  however,  that  the  fire- 
arms be  discharged. 

"On  September  10,  1904,  the  Japanese  Minister  of  War  issued  addi- 
tional rules  regulating  the  kind  and  amount  of  labor  which  might  be 
required  from  prisoners  of  war.  Article  I  provides  that  "prisoners  of 
war  might  be  required  to  work  for  governmental  or  public  establish- 
ments, corporations  or  individuals  according  to  their  rank,  situation,  or 
capacities,"  but  that  officers  can  not  be  forced  to  labor  against  their  own 
will.  Such  work  must  not  be  excessive  or  humiliating  to  those  engaged 
in  it.  (Art.  3.)  In  case  prisoners  are  employed  by  the  governmental 
establishments,  the  soldiers  are  to  receive  four  sen  (nearly  two  cents) 
and  the  non-commissioned  officers  and  civil  functionaries  seven  sen  per 
diem.  (Art.  5.)  Prisoners  may  be  authorized  to  work  for  themselves 
(Art.  2),  but  in  this  case  the  proceeds  (whether  in  the  form  of  money 
or  product)  are  to  be  turned  over  to  treasurers  of  the  establishment 
where  the  prisoners  are  kept  and  the  expenses  of  nourishment  and 
maintenance  shall  be  deducted  from  the  amount  credited  to  each  pris- 
oner.    (Arts.  6-3.)     See  Nagaoka,  op.  cit.,  pp.  608  f. 

"For  the  French  version  of  which  this  is  a  translation,  see  M.  H. 
Nagaoka,  Revue  de  Droit  Int.  et  de  Leg.  Comp.  for  1904.  pp.  497  ff. 

"  Cf.  Arts.  4  of  the  Hague  Regulations  and  32  of  the  Russian  In- 
structions. 


286  THE    RUSSO-JAPANESE    WAR 

3.  After  the  two  foregoing  articles  have  been  executed,  the 
prisoner  will  be  questioned  in  respect  to  his  age,  position,  rank 
and  nationality ;  then  the  list  of  prisoners  and  of  articles  con- 
fiscated and  taken  away  will  be  drawn  up. 

4.  Prisoners  of  war  will  be  divided  into  officers  and  civil 
functionaries  assimilated  to  officers  and  into  non-commissioned 
officers  and  soldiers,  and  each  prisoner  will  be  treated  accord- 
ing to  his  rank.  This,  however,  will  not  be  the  case  with  those 
who  do  not  tell  the  truth  when  interrogated  or  who  commit 
other  violations  of  the  regulations. 

5.  Prisoners  of  war  who  commit  a  breach  of  discipline  may 
be  interned,  imprisoned,  or  made  the  object  of  any  other  severe 
measure. 

In  case  of  an  attempt  to  escape  even  armed  force  may  be 
used  to  prevent  it,  if  it  be  considered  necessary. 

(Articles  6,  7,  8,  and  9,  deal  with  the  disposition  and  distribu- 
tion of  prisoners  of  war  and  are  omitted.) 

10.  The  place  in  which  prisoners  are  kept  shall  be  guarded 
by  sentinels  under  the  supervision  of  a  naval  officer. 

11.  If  a  prisoner  ask  permission  to  buy,  at  his  own  expense, 
an  article  of  use  or  luxury,  he  may  be  allowed  to  do  so  if  the 
attendant  sees  therein  no  inconvenience.  In  this  case  he  may 
be  allowed  all  conveniences  which  he  can  procure  for  himself. 

12.  The  prisoners  may  send  or  receive  letters  and  dispatches 
after  these  have  been  examined  by  the  officer  in  attendance. 
All  suspicious  communications  or  messages  in  cipher  should  be 
confiscated  or  prohibited. 

13.  The  naval  authorities  shall,  in  co-operation  with  the 
local  postal  officials,  take  such  measures  as  may  be  necessary 
in  respect  to  all  postal  articles  which  are  destined  for  prisoners 
or  sent  to  them,  and  which  enjoy  free  postage  according  to 
conventions.^* 

"  This  article  refers  to  Article  16  of  the  Hague  Regulations,  which 
declares  that  "letters,  money,  orders,  and  valuables,  as  well  as  postal 
parcels  destined  for  the  prisoners  of  war  or  dispatched  by  them  shall  be 
free  from  all  postal  duties,  both  in  the  country  of  origin  and  destination, 
as  well  as  in  those  through  which  they  pass." 


i 


RULES    OF    WARFARE  287 

14.  The  wills  of  prisoners  shall  be  subject  to  the  same  con- 
ditions as  those  of  men  belonging  to  the  navy.^* 

15.  At  a  place  pointed  out  to  the  agents  of  the  land  army 
who  are  charged  with  the  delivery  of  prisoners,  the  naval  pre- 
fect shall  deliver  the  articles  taken  from  these  prisoners  to- 
gether with  all  documents  as  well  as  wills  and  articles  left  by 
deceased  prisoners  before  their  demise.^^ 

The  text  of  Article  13  of  the  above  Regulations  being 
deemed  insufficient,  the  Japanese  Minister  of  Ways  and 
Communications  issued,  on  March  3,  1904,  the  following 
"Postal  Regulations  for  Prisoners  of  War:"^^ 

1.  By  postal  articles  in  these  regulations  are  meant  internal 
or  international  postal  articles,  whether  destined  for  the  Bureau 
of  Information  for  prisoners  of  war  or  whether  intended  for  the 
prisoners  themselves  or  sent  by  them. 

2.  All  postal  articles  concerning  prisoners  of  war,  excepting 
those  coming  under  the  head  of  these  regulations,  shall  be  sub- 
ject to  the  general  rules  for  the  internal  or  international  postal 
service. 

3.  Those  sending  postal  articles  to  prisoners  of  war  should 
indicate  the  following  on  the  address :  "Service  for  Prisoners 
of  War." 

4.  The  postal  articles  of  prisoners  of  war  are  free  from  all 
postal  duties,  in  conformity  with  conventions. 

5.  The  receipts  for  postal  articles  recommended,  or  for  ordi- 
nary postal  articles  with  a  declared  value,  or  of  postal  pack- 
ages destined  for  prisoners  of  war  or  sent  by  them,  will  be  de- 

"  This  article  was  inspired  by  Article  19  of  the  Hague  Regulations, 
which  declares  that  "the  wills  of  prisoners  of  war  shall  be  received  or 
drawn  up  on  the  same  conditions  as  for  soldiers  of  the  national  army." 
Cf,  Art.  35  of  the  Russian  Instructions. 

*"  In  the  French  text,  the  last  word  is  remise,  which  is  evidently  a  mis- 
print.  The  context  shows  that  demise  is  meant. 

^  Nagaoka,  op.  cit.,  pp.  499-500. 


288  THE   RUSSO-JAPANESE    WAR 

livered  by  the  intendant  of  the  establishment  for  the  interning 
of  prisoners  of  war  or  entrusted  to  this  intendant. 

On  the  same  day  (March  3,  1904)  the  Minister  of  Ways 
and  Communications  issued  similar  regulations  relating  to 
postal  orders  for  prisoners  of  war  :^^ 

1.  By  a  postal  order  in  these  regulations  is  meant  the  ordi- 
nary postal  or  international  postal  order  destined  for  prisoners 
of  war  or  sent  by  them. 

2.  All  postal  orders  concerning  prisoners  of  war,  excepting 
those  coming  under  the  head  of  these  regulations,  shall  be  sub- 
ject to  the  general  rules  for  internal  and  international  postal 
orders. 

3.  Postal  orders  concerning  prisoners  of  war  shall  be  free 
from  all  duties,  in  conformity  with  conventions. 

4.  One  sending  a  postal  order  to  a  prisoner  of  war  should 
request  the  postal  bureau  from  which  the  order  is  sent  to  make 
the  following  entry :   "Postal  Order  for  Prisoner  of  War." 

5.  The  money  for  the  order,  and  the  receipt  and  other  docu- 
ments relating  to  it  shall  be  entrusted  to  the  intendant  of  the 
establishment  for  the  interning  of  prisoners  of  war  without  be- 
ing subject  to  the  procedure  of  power  of  attorney  \procnra- 
tion) . 

6.  The  intendant  of  the  establishment  may  address  all  re- 
quests concerning  postal  orders  at  the  postal  bureau  in  the  name 
of  the  prisoner  of  war  without  being  subject  to  the  procedure 
of  power  of  attorney. 

Article  14  of  the  Hague  "Regulations  Respecting  the 
Laws  and  Customs  of  War  and  Land"  had  provided  for  a 
Bureau  of  Information  for  prisoners  of  war  in  the  follow- 
ing terms  :^^ 

"A  Bureau  of  Information  relative  to  prisoners  of  war  shall 

^  Op.  cit.,  p.  500. 

"  Holls,  Peace  Conference,  pp.  148  and  431. 


RULES   OF    WARFARE  289 

be  instituted,  on  the  commencement  of  hostilities,  in  each  of  the 
belligerent  states  and,  when  necessary,  in  the  neutral  countries 
on  whose  territory  belligerents  have  been  received.  This  Bureau 
is  intended  to  answer  all  inquiries  about  prisoners  of  war,  and 
shall  be  furnished,  by  the  various  services  concerned,  with  all 
the  necessary  information  to  enable  it  to  keep  an  individual  re- 
turn for  each  prisoner  of  war.  It  shall  be  kept  informed  of  in- 
ternments and  changes,  as  well  as  of  admissions  into  hospitals, 
and  deaths. 

"It  shall  also  be  the  duty  of  the  Bureau  of  Information  to  re- 
ceive and  collect  all  objects  of  personal  use,  valuables,  letters, 
etc.,  found  on  the  battlefields  or  left  by  prisoners  who  have 
died  in  hospital  or  ambulance,  and  to  transmit  them  to  those 
interested."-* 

In  conformity  with  these  provisions  of  the  Hague  Con- 
vention, the  following  Imperial  Ordinance,  which  has  a 
very  special  interest,  was  issued  by  the  Japanese  Govern- 
ment on  February  21,  1904:"^ 

Article  i.  The  Bureau  of  Information  relative  to  prisoners 
of  war  will  be  established  at  Tokio  and  is  to  deal  with  the  fol- 
lowing matters : 

(i)  examination  of  interments,  changes,  admissions  into 
hospitals,  deaths,  and  the  recording  of  individuals  driven  in  as 
prisoners ; 

(2)  correspondence  relating  to  the  condition  of  prisoners; 

(3)  the  receipt  of  gifts  made  to  prisoners  and  of  articles 
and  money  sent  by  them  ; 

(4)  preservation  of  wills  and  articles  left  by  deceased  pris- 
oners, and  the  return  of  these  articles  to  their  families  or  to 
other  interested  parties ; 

(5)  the  receipt  of  information  regarding  the  enemy's  dead 

"Art.  16  also  gives  the  Bureau  of  Information  the  privilege  of  free 
postage.   See  above. 
"Nagaoka,  op.  cit.,  pp.  501-502. 


290  THE   RUSSO-JAPANESE   WAR 

gathered  upon  the  battlefield,  and  of  their  wills  and  articles 
found  upon  them,  by  the  land  or  naval  forces,  in  accordance 
with  the  regulations  applied  to  prisoners  of  war. 

Art.  2.  The  Bureau  of  Information  shall  be  composed  of  a 
President  and  two  Commissioners. 

The  President  shall  be  selected  from  among  the  generals  or 
colonels  of  the  land  army ;  the  commissioners  from  among  the 
superior  or  subaltern  officers  of  the  land  or  naval  forces  or 
from  civil  functionaries  of  the  rank  of  "sonin." 

Seven  Secretaries  of  the  rank  of  "hannin"  are  to  be  added  to 
this  Bureau.  The  number  of  commissioners  and  secretaries 
may  be  increased  if  deemed  necessary. 

Art.  3.  The  President  shall  manage  the  business  of  the 
Bureau  under  the  orders  of  the  Minister  of  War. 

Art.  4.  The  President  may  request  of  the  military  or  naval 
authorities  and  from  the  hospitals  or  ambulances  all  necessary 
communications  upon  the  business  of  the  Bureau. 

Art.  5.  The  Commissioners  shall  administer  affairs  under 
the  orders  of  the  President. 

Art.  6.  The  Secretaries  shall  work  under  the  direction  of 
the  aforesaid  superior  functionaries. 

Soon  after  this  Bureau  of  Information  was  established 
"orders  were  issued  to  all  military  and  naval  commanders 
to  report  to  the  Bureau  with  the  least  possible  delay,  and  by 
telegraph  whenever  practicable,  the  names  of  all  captured 
Russian  soldiers,  their  rank,  and  the  military  unit  to  which 
they  were  attached.  In  the  case  of  the  wounded  the  same 
details  and  information  regarding  the  men's  condition,  ac- 
cording to  the  reports  of  the  surgeons,  were  to  be  sent,  and 
before  the  dead  were  buried  every  effort  was  to  be  made  to 
ascertain  their  names  and  rank,  and,  failing  that,  an  exact 
description  was  to  be  sent  of  such  bodily  characteristics  as 
might  serve  as  a  means  of  identification.  Before  burial  the 
bodies  were  to  be  carefully  searched,  all  valuables,  papers. 


RULES    OF    WARFARE  29I 

and  other  belongings  were  to  be  catalogued,  made  a  matter 
of  record,  and  forwarded  to  the  Bureau  at  Tokio,  with  such 
other  information  as  might  serve  to  facilitate  their  return 
to  the  relatives  of  the  dead."^" 

The  humane  spirit  displayed  by  the  Japanese  in  their 
treatment  of  the  dead,  as  also  their  regard  for  sanitation,  is 
shown  by  the  following  "Regulations  Relative  to  the  Clear- 
ing of  the  Battle-Field  and  the  Interment  of  the  Bodies 
upon  said  Field,"  published  by  the  Japanese  Minister  of 
War  on  May  30,  1904:^^ 

Article  i.  Each  army  corps  shall,  as  soon  as  possible,  or- 
ganize a  body  of  men  for  clearing  (corps  de  deblaicment)  the 
battlefield  after  each  battle  for  the  purpose  of  searching  for  the 
sick,  the  wounded,  and  the  dead,  and  to  take  necessary  measures 
concerning  the  articles  left  by  them.    .    .    , 

Art.  2.  The  sick  and  wounded^*  shall  be  treated  in  accord- 
ance with  the  provisions  of  the  "Regulations  upon  the  Sanitary 
Service  in  Time  of  War."  The  bodies  of  the  dead  shall  be 
treated  with  respect  according  to  their  position  or  rank,  whether 
they  belong  to  the  imperial  army  or  to  the  army  of  the  enemy. 

Art.  3.  The  most  thorough  investigation  possible  should  be 
made  in  respect  to  the  names,  position,  and  rank  of  the  men,  as 
also  in  respect  to  the  name  of  the  company  to  which  they  be- 
long, etc.  This  should  be  done  by  examining  the  army  records, 
the  marks  of  the  uniform,  the  signs  of  identity,  etc. 

Art.  4.    In  general,  the  bodies  of  those  belonging  to  the  im- 

"  See  N.  Y.  Times  for  July  25,  1904. 

"  For  these  Regulations,  see  Nagaoka,  Revue  Generate  de  Droit  Int. 
Pub.,  pp.  611-12. 

"  On  the  treatment  of  the  sick  and  wounded,  see  the  letter  of  the 
Japanese  Minister  of  the  Navy  to  the  President  of  the  Red  Cross  So- 
ciety, printed  in  the  Revue  Generale  de  Droit  Int.  Pub.  for  1905,  pp. 
609  flF.  Every  one  knows  that  the  Japanese  have  set  the  world  an  exam- 
ple in  sanitation  and  medical  science  as  applied  to  the  sick  and  wounded, 
and  that  their  physicians  and  surgeons  do  not  distinguish  between  friend 
and  enemy  either  in  the  hospital  or  on  the  battlefield. 


292  THE   RUSSO-JAPANESE    WAR 

perial  army  should  be  burned,  whereas  those  belonging  to  the 
army  of  the  enemy  should  be  buried ;  but,  in  case  there  should 
be  any  fear  of  spreading  contagious  diseases,  the  bodies  of  the 
enemy  may  also  be  burned. 

Art.  5.  There  shall  be  no  burial  until  after  it  is  certain  that 
life  is  extinct. 

Art.  6.  The  corps  for  clearing  the  battlefield  shall  gather 
together  the  bodies  in  one  or  several  places,  being  careful  to 
separate  those  belonging  to  the  imperial  army  from  those  of  the 
enemy.  The  bodies  shall  then  be  covered  with  straw  matting 
or  some  other  material.  In  case  they  should  not  be  able  to 
group  the  bodies,  every  effort  should  nevertheless  be  made  to 
cover  them. 

Art.  7.  After  having  observed  the  preceding  article,  the 
bodies  should  then  be  burned  or  buried  as  soon  as  possible  in 
accordance  with  the  distinction  indicated  in  Article  4. 

Art.  8.  The  place  of  burning  must  be  selected  in  conformity 
with  rules  Nos.  i  and  2,  indicated  below,  and  the  place  of  burial 
in  accordance  with  rules  Nos.  i,  2,  and  3,  indicated  below: 
I.  The  place  of  burning  or  burial  shall  be  distant  from  high- 
ways, towns,  villages,  and  military  posts.  2.  The  place  of 
burning  or  burial  shall  be  distant  from  the  sources  of  water 
supply,  from  running  streams,  and  wells  or  springs  of  which 
the  water  is  drinkable.  3.  For  the  place  of  burial  dry  and  poor 
lands  on  a  plateau  or  declivity  shall  be  selected. 

Arts.  9  to  11.    (Omitted  as  without  importance.) 

Art.  12.  As  far  as  possible  the  following  rules  should  be  ob- 
served in  burning  the  bodies  of  those  belonging  to  the  army  of 
the  enemy:  i.  The  bodies  of  officers  and  civil  functionaries  of 
similar  rank  shall  be  buried  separately.  2.  The  bodies  of  non- 
commissioned officers,  soldiers,  and  others  shall  be  buried  sep- 
arately or  together  without  ever  exceeding  fifty  in  a  grave. 
3.  The  graves  should  be  as  deep  as  possible  and  the  bodies 
should  be  interred  at  more  than  a  metre  below  the  surface  of 
the  earth.  4.  In  the  bottom  of  the  graves  branches  of  trees  or 
straw  shall  be  placed  upon  which  the  bodies  shall  lie ;  and  upon 
the  bodies  shall  be  put  a  bed  of  lime,  charcoal,  cinders  or  min- 


RULES    OF    WARFARE  293 

eral  solutions.  Every  precaution  should  be  taken  to  guarantee 
proper  hygienic  conditions.  5.  A  small  mound  of  earth  taken 
from  the  grave  shall  1>e  raised  to  mark  the  site. 

Arts.  13  and  14.    (Omitted  as  of  no  importance.) 

Art.  15.  Separate  mounds  should  be  erected  for  the  bodies 
of  those  belonging  to  the  imperial  army  of  Japan  and  for  those 
of  the  enemy.  Suitable  marks  should  be  placed  upon  each 
mound  in  order  to  perpetuate  the  memory  of  the  dead. 

Art.  16.  In  all  cases  where  the  bodies  are  buried,  a  suitable 
ceremony  should  be  performed  in  accordance  with  the  position 
and  rank  of  the  dead.  At  this  ceremony  Shinto  or  Buddhist 
priests,  pastors,  or  other  clergy  should  be  asked  to  assist,  if 
any  such  are  to  be  found  in  the  army  where  the  burial  takes 
place. 

Art.  17.  The  bodies  of  the  native  inhabitants  found  upon 
the  battlefield  shall  be  buried  in  the  same  manner  as  the  bodies 
belonging  to  the  enemy.  But  when  those  having  the  right  to  do 
so  shall  ask  for  the  delivery  of  such  bodies,  as  much  as  possible 
must  be  done  to  grant  the  request. 

Art.  18.    (Omitted  as  of  no  importance.) 

Art.  19.  As  for  those  belonging  to  the  army  of  the  enemy  of 
whom  the  names,  age,  nationality,  position,  rank  and  company 
are  known,  a  list  of  their  names  together  with  the  place  of  dis- 
covery of  the  body  and  of  its  burial,  as  also  the  dates  of  such 
discovery  and  burial,  should  be  drawn  up.  This  list  shall  be 
transmitted  to  the  Bureau  of  Information  for  prisoners  of  war 
by  the  commander  of  the  place  who  shall  at  the  same  time  send 
to  the  same  Bureau  the  belongings  left  by  the  dead.  These 
should  be  made  into  parcels  upon  each  of  which  shall  be  in- 
scribed the  name,  rank,  etc.,  of  its  owner.  But  the  provisions 
above  mentioned  are  not  applicable  to  arms,  horses,  and  military 
documents. 

Art.  20.  The  belongings  left  by  the  dead  native  inhabitants 
upon  the  battlefield  shall  be  delivered  to  the  nearest  local  au- 
thority by  the  commander  of  the  company  of  the  place  for  the 
purpose  of  restoring  them  to  those  having  the  right  to  claim 
such  articles. 


294  THE    RUSSO-JAPANESE    WAR 

Art.  21.  The  commander  or  the  company  of  the  place  shall 
take  such  measures  as  may  be  necessary,  according  to  circum- 
stances, in  respect  to  arms,  provisions,  horses,  and  military 
documents  as  well  as  belongings  left  by  unknown  owners.  The 
articles  enumerated  in  the  preceding  paragraph  will  be  con- 
sidered as  booty,  excepting  those  belonging  to  the  imperial 
army  (of  Japan). 

Arts.  22  to  24.    (Omitted  as  without  importance.) 

With  certain  omissions  on  the  part  of  Russia  which  have 
been  noted,  the  Russian  as  well  as  the  Japanese  Instructions 
certainly  breathe  a  spirit  of  the  highest  type  of  humanity 
and  religious  tolerance.^*  They  are  worthy  of  all  praise 
and  imitation.  The  usages  which  they  enjoin  are  now  in- 
deed so  generally  observed  in  civilized  warfare  that  they 
may  be  said  to  constitute  at  least  a  part  of  the  spirit  of  the 
law  of  nations. 

^  This  is  particularly  true  of  the  Japanese  Instructions  of  February  10 
and  19,  1904. 


CHAPTER  XI 

The  Relations  of  the  Belligerents  with  Each 

Other 

The  relations  of  the  belHgerents  with  each  other  during 
the  Russo-Japanese  War  derive  especial  importance  from 
the  fact  that  both  belligerents  were  signatories  to  the  Hague 
Convention  of  1899,  which  adopted  an  international  code 
of  laws  and  customs  for  the  regulation  of  land  warfare,  and 
also  from  the  fact  that  this  war  witnessed  the  first  attempt 
to  put  into  practice  some  of  the  provisions  of  this  code.' 

In  respect  to  the  treatment  of  subjects  or  citizens  of  the 
enemy  state  found  within  belligerent  territory  at  the  out- 
break of  the  war  and  of  the  number  of  "days  of  grace"  al- 
lowed to  enemy  merchantmen  lying  in  belligerent  ports,  the 
conduct  of  Japan,  as  well  as  that  of  Russia,  although  not, 
strictly  speaking,  illegal,  left  much  to  be  desired  on  the 
score  of  liberality.  The  Japanese  Imperial  Decree  of  Feb- 
ruary 9.   1904.  permitted  Russian  merchantmen,^  provided 

*  This  code,  which  was  essentially  based  upon  that  drawn  up  by  the 
Brussels  Conference  in  1874,  was  largely  ignored  during  the  Boer  War. 
perhaps  partly  because  the  Boers  were  not  a  party  to  the  Hague  Confer- 
ence While  the  conduct  of  the  Boers  was,  under  the  circumstances, 
worthy  of  much  praise,  the  English  fell  short  in  some  respects,  not 
merely  of  the  Hague  Regulations,  but  of  the  standards  set  by  modem 
civilization,  especially  in  the  matter  of  the  treatment  of  prisoners  of 
war  and  of  non-combatants.  For  plenty  of  evidence  of  the  truth  of  this 
assertion,  the  reader  is  referred  to  Despagnet.  La  Guerre  Sud-Africainc. 
and  Desjardins  in  Revue  dcs  Deux  Mondes,  Mars.  1900.  pp.  3^  tT.  passitn. 
'  See  supra,  p.  281.  It  will  be  seen  that  the  Japanese  ordinance  also  pro- 
vided that  Russian  merchantmen  which  had  left  foreign  ports  for  Japan 
before  February  16  might  enter  Japanese  ports  on  certain  conditions. 


296  THE    RUSSO-JAPANESE    WAR 

they  did  not  have  contraband  of  war  on  board,  to  load  and 
discharge  their  cargoes  and  remain  in  Japanese  ports  until 
February  16  (i.  e.,  for  a  period  of  seven  days)  ;  and,  accord- 
ing to  the  second  article  of  the  Czar's  Order  of  February 
28,^  Japanese  ships  of  commerce  (having  no  contraband  of 
war  on  board)  found  in  Russian  ports  at  the  time  of  the 
declaration  of  war  (February  10)  were  in  no  case  to  be 
allowed  to  remain  more  than  forty-eight  hours  after  the 
publication  of  the  "present  declaration"  by  the  local  authori- 
ties. 

Although  all  enemy  vessels  are,  strictly  speaking,  liable 
to  capture  immediately  after  the  outbreak  of  war,  recent 
practice  has  been  much  more  liberal  and  indulgent  than  was 
the  attitude  of  Russia  and  Japan  toward  each  other  at  the 
outbreak  of  the  Russo-Japanese  War.  At  the  beginning  of 
the  Crimean  War  six  weeks  were  allowed  by  Russia,  Eng- 
land and  France,*  and  ''concessions  of  a  like  kind  were  made 
to  each  other  by  France  and  Prussia  in  1870,  and  by  Russia 
and  Turkey  in  1877.'"^  According  to  the  Proclamation  is- 
sued by  President  McKinley  on  April  26,  1898,  soon  after 
the  outbreak  of  the  Spanish-American  War,  Spanish  mer- 
chant vessels  in  American  ports  were  to  be  allowed  until 
May  21,  1898,  inclusive,  for  loading  their  cargoes  and  de- 
parting from  such  ports.  They  were  not  to  be  captured  on 
their  return  voyage  unless  their  cargoes  included  contraband 
of  war,  Spanish  military  or  naval  officers,  or  any  dispatches 
to  or  from  the  Spanish  Government.     It  was  further  pro- 

*  See  supra,  p.  269.  It  will  be  seen  that  the  Japanese  ordinance  also 
provided  that  Russian  merchantmen  which  had  left  foreign  ports  for 
Japan  before  February  16,  1904,  should  be  permitted  to  enter  Japanese 
ports  on  certain  conditions. 

*  See  Dana's  Wheaton,  note  156,  p.  389. 
'Lawrence,  Principles,  p.  384. 


RELATIONS    OF    THE    BELLIGERENTS  297 

vided  that  "any  Spanish  merchant  vessel  which,  prior  to 
April  21,  1898,  shall  have  sailed  from  any  foreign  port 
bound  for  any  port  or  place  in  the  United  States,  shall  be 
permitted  to  enter  such  port  or  place,  and  to  discharge  her 
cargo,  and  afterward  fortwith  to  depart  without  molesta- 
tion." Such  a  vessel,  it  was  declared,  was  not  to  be  cap- 
tured on  her  return  voyage.^ 

It  is  also  to  be  noted  that,  although  the  Russian  Govern- 
ment declared  that  "Japanese  subjects  are  authorized  to 
continue,  under  the  protection  of  the  Russian  law,  to  reside 
and  follow  their  peaceful  callings  in  the  Russian  Empire," 
the  "territories  forming  part  of  the  Imperial  Lieutenancy  in 
the  Far  East^  (where  the  great  majority  of  Japanese  to  be 
found  in  the  Russian  Empire  must  have  resided)  were  ex- 
pressly exempted  from  the  terms  of  this  declaration.  The 
Japanese  Government  in  its  Instructions  of  February  lo, 
1904,®  made  no  exceptions  whatever,  although  it  was  made 
clear  that  such  permission  must  be  regarded  as  a  pure  act 
of  grace  and  as  conditional  upon  good  behavior. 

The  Japanese  complained  bitterly  during  the  early  stages 

•  For  the  text  of  the  Proclamation,  see  House  Doc.  of  55th  Congress, 
3d  session  (For.  Rel.  1898),  p.  772.  Cf.  Stockton's  Naval  War  Code, 
Art.  15,  for  an  official  statement  of  the  rules  governing  American 
practice. 

These  liberal  rules  have  been  given  a  still  wider  interpretation  at  the 
hands  of  the  American  judiciary.  In  the  case  of  the  Buctta  Ventura 
(1899,  175  U.  S.  384)  the  United  States  Supreme  Court  held  that  the 
enemy's  vessels  were  included  within  the  intention  of  the  President's 
Proclamation,  even  though  their  departure  from  an  American  port  took 
place  before  the  war  had  begun.  The  Buena  Ventura,  which  had  left 
Ship  Island,  Mississippi,  on  April  19,  two  days  before  the  outbreak  of 
hostilities,  and  which  was  captured  on  April  22,  a  day  after  this  out- 
break, was  accordingly  released.  On  "Days  of  Grace,"  see  especially 
Lawrence,  IVar  and  Neutrality,  ch.  3. 

^  See  Art.  17  of  the  Russian  Imperial  Ordinance,  given  above,  p.  269. 

*  See  supra,  pp.  2Bi-2d'2. 


298  THE    RUSSO-JAPANESE    WAR 

of  the  war  of  the  hardships  suffered  by  their  compatriots  in 
Manchuria  and  Siberia  in  consequence  of  their  sudden  and 
cruel  expulsion  from  these  territories.  Japanese  refugees  at 
Niu-Chwang  and  Port  Arthur  appear  to  have  been  robbed 
and  cruelly  maltreated  (in  some  cases  they  were  even  mur- 
dered) ;  and  the  Russian  soldiery  and  police,  instead  of  pre- 
venting these  outrages,  are  even  said  to  have  participated 
in  them.^ 

On  March  19,  1904,  Mr.  Takahira,  the  Japanese  Minister 
at  Washington,  requested  the  good  offices  of  the  American 
Embassy  at  St.  Petersburg  (which  had  assumed  charge  of 
Japanese  interests  in  Russia)  in  behalf  of  about  fifty  desti- 
tute Japanese  subjects  in  Tsitu  (Chita?),  Siberia.  It  appears 
that  among  these  unfortunates  were  nineteen  Japanese  who 
had  been  suddenly  ordered  by  the  police  authorities  to  leave 
Irkutsk  without  a  moment's  warning  and  who  were  thus 
unable  to  take  with  them  any  of  their  effects.  Our  State 
Department  and  the  American  ambassador  in  St.  Peters- 
burg acted  with  great  promptness,  and  some  at  least  of 
these  objects  of  mistreatment  on  the  part  of  Russian  au- 
thorities reached  Berlin  in  safety,  where  they  were  cared 
for  by  the  Japanese  Legation.^" 

Although,  as  a  matter  of  strict  law,  a  belligerent  still  has 
an  unquestionable  right  to  expel  enemy  subjects  from  its  ter- 
ritory, this  right  should  undoubtedly  only  be  exercised  in 

■  See  especially  a  Renter's  dispatch  from  Niu-Chwang,  dated  February 
16,  and  a  dispatch  from  its  special  correspondent  at  Nagasaki,  dated 
March  3,  1904,  in  the  London  Times. 

"See  House  Doc.  of  58th  Congress,  3d  session  (For.  Rel.  1904),  pp. 
431-32  and  715.  See  also  N.  Y.  Times  and  Washington  Post  for  March 
20,  1904.  About  800  Japanese  residing  in  Russia  were  subsequently 
transported  from  Russia  to  Germany  through  the  kind  offices  of  our 
ambassador  at  St.  Petersburg.   See  House  Doc,  op.  cit.,  p.  436. 


RELATIONS  OF  THE  BELLIGERENTS         299 

extreme  cases  and  under  very  exceptional  circumstances. 
Modern  practice  permits  the  citizens  or  subjects  of  enemy 
states  to  remain  in  belligerent  territory  unless  their  expul- 
sion is  demanded  by  considerations  of  military  necessity.'' 

It  is  always  difficult  to  obtain  full  and  unbiased  informa- 
tion concerning  the  actual  conduct  of  belligerents  in  any 
war.  This  was  especially  true  during  the  Russo-Japanese 
War  owing  to  the  remoteness  of  the  field  of  military  opera- 
tions and  the  rigor  of  the  censorship  on  both  sides.  The 
Japanese  were  particularly  secretive  and  their  success  m 
concealing  from  the  world  all  knowledge  of  their  military 
and  naval  movements  was  one  of  the  man'els  of  modem 
warfare.  Consequently,  we  are  not  in  a  position  to  present 
the  reader  with  a  very  complete  account  of  the  relations  of 
the  belligerents  with  each  other  during  the  war.  Certain 
incidents  occurred,  however,  and  certain  revelations  were 
made  which  throw  considerable  light  upon  this  interesting 
subject. 

There  was  much  unfavorable  criticism  of  Russian  meth- 
ods of  warfare  by  the  Japanese  and  by  pro-Japanese  critics 
in  consequence  of  the  sinking  of  several  Japanese  trading 
vessels  and  transports  during  the  early  period  of  the  war. 
Among  these  were  the  Nakonoura  Maru  on  February  ii, 

"Soon  after  the  outbreak  of  the  Boer  War  (1899),  a  sentence  of  ex- 
pulsion was  pronounced  upon  all  Englishmen  residing  in  the  Transvaal 
and  the  Orange  Free  State.  In  1870,  the  French  Government  ordered  all 
Germans  to  leave  the  Department  of  the  Seine,  but  this  extreme  measure 
appears  to  have  been  taken  primarily  in  the  interest  of  the  Germans 
themselves. 

On  the  general  subject  of  the  eflfcct  of  war  on  resident  enemies,  see 
especially  L-iwrence,  Principles,  pp.  3-28-330;  Hall.  §  126  and  notes; 
Twiss,  II,  §§  46-51;  Taylor,  §  463;  Rivier,  II,  pp.  229-231;  Bonfils, 
§§  1052-56;  Calvo,  IV,  1912-15;  Geflfeken's  HeflFter,  §§  121  and  126;  and 
De  Martens,  III,  pp.  197-200. 


300  THE    RUSSO-JAPANESE    WAR 

the  Goyo  Marti  and  the  Kinshiu  Maru  on  April  25  and  26, 
and  the  Hitachi  Maru  on  June  15,  1904.  All  of  these  ves- 
sels were  either  fired  upon  and  sunk,  or  captured  and  sunk, 
without  being  sent  to  a  Russian  Prize  Court  for  adjudi- 
cation. 

The  Nakonoura  Maru  was  captured  and  sunk  and  her 
crew  was  "taken  on  board  a  Russian  man-of-war  and  con- 
veyed to  Vladivostok,  from  whence  they  were  sent  back  to 
Japan  by  a  German  steamer."^^  The  sinking  of  this  ves- 
sel may  be  justified  on  the  ground  of  military  necessity,^^ 
for  the  weather  is  said  to  have  been  "terrific"  and  the  ship 
was  so  greatly  damaged  as  to  be  unseaworthy,  "The  same 
considerations  apply  to  the  case  of  the  trading  steamer  Goyo 
Maru,  except  that  the  reason  for  not  sending  her  in  for  ad- 
judication by  a  Prize  Court  was  the  close  proximity  of  a 
superior  Japanese  squadron."^* 

Some  of  the  Japanese  troops  on  board  the  transport  Kin- 
shiu Maru  surrendered,  and  these  were  held  as  prisoners  of 
war;  but  several  hundred  of  them  preferred  to  go  down  with 
the  ship.  If  our  information  be  correct,  the  same  thing 
seems  to  have  happened  in  the  case  of  the  transport  Hitachi 
Maru.  Some  of  the  Japanese  troops  on  board  surrendered, 
but  the  rest  refused  quarter  and  went  down  firing  on  the 

"  Lawrence,  War  and  Neutrality,  p.  41.  The  first  accounts  in  the 
newspapers  represented  that  the  vessel  had  been  suddenly  fired  upon 
without  warning  or  summons  to  surrender,  and  that  all  on  board  were 
either  killed  or  drowned,  but  later  information  showed  that  this  was  an 
error.  This  would,  as  Lawrence  (op.  cit.,  p.  40)  observes,  have  been  a 
"gross  outrage." 

"  As  we  have  seen  in  a  previous  chapter,  a  broad  line  of  distinction 
should  be  drawn  between  neutral  and  enemy  ships  in  this  respect.  See 
supra,  p.  156  and  n. 

"  Lawrence,  op.  cit.,  pp.  41-42. 


RELATIONS    OF    THE    BELLIGERENTS  3OI 

Russians  as  they  sank.''  This  was  doubtless  brave  and 
gallant  conduct  from  the  Japanese  point  of  view,  and  even 
we  of  the  West  can  not  withhold  our  admiration ;  but,  how- 
ever splendid,  it  was  not  war,  and  the  Russians  should  not 
be  censured  either  for  sinking  these  transports  or  for  refus- 
ins:  to  treat  as  non-combatants  those  who  had  not  surren- 
dered  and  some  of  whom,  at  least,  continued  fighting.  ^° 

The  conduct  of  both  belligerents  in  the  war  appears,  on 
the  whole,  to  have  been  distinclty  honorable  in  abstaining 
from  the  use  of  ruses  or  methods  implying  treachery. 
Among  the  prohibitions  of  the  Hague  Convention*'  and  of 
International  Law  are  "the  improper  use  of  a  flag  of  truce, 
the  national  flag,  or  military  ensigns,  and  the  enemy's  uni- 
form as  well  as  the  distinctive  badges  of  the  Geneva  Con- 
vention," although  "ruses  of  war  and  the  employment  of 
methods  to  obtain  information  about  the  enemy  and  the 
country  are  considered  allowable." 

An  Associated  Press  Dispatch  from  St.  Petersburg,  dated 

"Nearly  all  the  officers  of  the  Hitachi  Maru  as  well  as  the  Kiushiu 
Maru  are  said  to  have  performed  harakiri. 

"  This  conduct  on  the  part  of  the  Russians  was,  however,  contrasted 
with  the  humane  conduct  of  the  Japanese  Vice-Admiral  Kamimura.  who, 
in  August,  1904,  gave  up  the  pursuit  of  the  Russian  cruisers  Gromoboi 
and  Rossia  in  order  to  save  the  lives  of  600  Russians  struggling  in  the 
sea,  who  had  cast  themselves  in  the  water  when  their  vessel,  the  Rurik, 
began  to  sink.  See  Chicago  Tribune  and  N.  Y.  Times  for  August  16, 
1904. 

"  Arts.  23f  and  24  of  the  Hague  Regulations.  These  prohibitions, 
which  are  al.so  those  of  the  Brussels  Conference  (see  Art.  I3f),  have 
been  frequently  violated  even  in  recent  wars.  During  the  Boer  War, 
the  Boers  brought  several  serious  accusations  against  the  British  for 
firing  upon  or  abusing  the  distinctive  signs  of  the  Geneva  Convention 
and  firing  upon  a  Red  Cross  ambulance.  The  English,  in  their  turn, 
charged  the  Boers  with  no  less  than  si.x  violations  of  the  rights  of  a 
bearer  of  a  flag  of  truce.  See  Dcsjardins  in  Rez'ue  des  Deux  Mondcs, 
Mars-Avril,  1900,  pp.  49-50,  and  Despagnet,  La  Guerre  Sud-Africaine, 
passim. 


302  THE    RUSSO-JAPANESE    WAR 

May  lo,  T904,"  stated  that  Russia  had  protested  to  the 
Powers  signatory  to  the  Hague  and  Geneva  Conventions 
against  the  action  of  the  Japanese  in  firing  on  the  Red  Cross 
train  coming  from  Port  Arthur  on  May  6.  Out  of  two 
hundred  sick  and  wounded  on  this  train,  two  were  said  to 
have  been  struck  by  Japanese  bullets.  On  May  12  the  Jap- 
anese Legation  at  London  published  an  official  telegram 
from  the  Foreign  office  at  Tokio  in  explanation  of  this  ap- 
parent violation  of  the  law  of  nations.  It  asserted  that  the 
train  carried  no  distintive  marks  and  that  the  Japanese 
merely  responded  to  firing  from  Russian  soldiers  on  board. 
When  the  train  stopped  and  a  Red  Cross  flag  was  hoisted, 
the  Japanese  immediately  ceased  firing.^^  It  appears  that 
the  train  was  a  composite  one,  partly  devoted  to  the  use  of 
the  Red  Cross  service  and  partly  filled  with  Russian  sol- 
diers and  non-combatants  who  had  seized  this  opportunity 
of  leaving  Port  Arthur.  "If,"  as  Lawrence  observes,^** 
"this  account  be  correct,  not  only  was  the  Japanese  force 
fully  justified  in  firing,  but  Japan  might  have  preferred  a 
counter-charge  against  the  Russians  of  an  unlawful  use  of 
the  Red  Cross  to  cover  the  escape  of  soldiers  and  high  of- 
ficials. .  .  .^^  The  Geneva  Convention  is  quite  clear  upon 
the  point  that  immunities  accorded  to  the  Red  Cross  badge 
are  conditional  upon  its  exclusive  use  to  cover  persons  and 
things  connected  with  the  care  of  the  sick  and  wounded. 
The  Japanese  troops  would  have  been  well  within  their 
rights  if  they  had  captured  the  train  and  all  that  it  con- 
tained." 

"See  Chicago  Record-Herald  for  May  11,  1904. 
^^  Ibid.,  May  13,  1904. 
°°  War  and  Neutrality,  pp.  43-44. 

"  It    was   reported   that  Admiral    Alexieff  was   on   board   this    "Red 
Cross"  train. 


RELATIONS  OF  THE  BELLIGERENTS         303 

Several  other  charges  of  treachery  in  the  use  of  the  white 
flag,  the  Red  Cross  flag,  and  the  national  flag  were  made 
during  the  war,  although  we  are  not  in  a  position  to  pro- 
nounce upon  their  truth  or  falsity.  An  Associated  Press 
Dispatch  from  Tokio,  dated  June  i6,  1904,"  stated  that  it 
was  reported  in  official  dispatches  from  Japanese  officers  in 
the  field  that  a  body  of  Russian  soldiers  had  induced  the 
Japanese  artillery  to  cease  firing  upon  them  by  the  use  of 
the  Japanese  flag  at  the  battle  of  Telissu.  At  the  battle  of 
Yentai  in  October,  1904,  the  Japanese  were  accused  of  en- 
deavoring to  protect  themselves  from  a  heavy  Russian  fire 
by  the  use  of  the  Red  Cross  flag."  In  an  interview^*  with 
a  correspondent  of  the  Associated  Press  at  Che-Foo  in  Sep- 
tember, 1904,  Lieut.  Prince  Radziwill,  a  Polish  officer  in 
the  Russian  army,  declared  that  both  besiegers  and  besieged 
at  Port  Arthur  had  developed  such  strong  feelings  of  mutual 
hatred  and  suspicion  that  even  "flags  of  truce  for  the  burial 
of  the  dead  were  ignored  by  both  sides."  The  result  was 
that  great  numbers  of  Japanese  dead  remained  unburied  and 
the  stench  in  Port  Arthur  from  their  decomposing  bodies 
was  almost  unendurable.  Our  informant  also  related  the 
following  incident :  In  the  course  of  the  assaults  on  Port 
Arthur,  which  took  place  during  the  last  four  days  of  Au- 
gust, 1904,  two  companies  of  Japanese  soldiers,  finding 
themselves  at  the  mercy  of  the  Russians,  hoisted  the  white 
flag.  But  to  this  the  Russians  paid  no  attention  and  they 
continued  to  fire  volley  after  volley  upon  the  helpless  enemy. 
In  the  meantime,  the  Japanese  troops  in  the  rear  of  these 
two  companies  expressed  their  disapproval  of  this  attempt 

"See  Chicago  Rccord-Hcrald  for  June  17,  1904. 

'^  Chicago  Tribune  for  October  15,  1904. 

"  See  c.  g.,  N.  Y.  Times  and  Chicago  Tribune  for  September  19,  1904. 


304  THE    RUSSO-JAPANESE    WAR 

on  the  part  of  their  comrades  to  surrender  by  also  firing  up- 
on them.  As  a  result  of  this  double  fire  from  friend  and 
foe  600  Japanese  soldiers  are  said  to  have  been  killed.^*^ 

Although  a  general  is  under  no  obligation  to  receive  the 
bearer  of  a  flag  of  truce  under  all  circumstances,^®  and  al- 
though it  is  not  required  that  firing  shall  immediately  cease 
upon  the  appearance  of  a  flag  of  truce  in  battle,^ ^  it  was  cus- 
tomary even  in  ancient  times  to  grant  truces  for  the  burial 
or  disposal  of  the  dead.  It  is  to  be  hoped  that  modern  bel- 
ligerents will  not  permit  themselves  to  fall  short  of  the  stand- 
ard set  by  the  ancients  in  this  respect,  and  that  such  scenes 
as  Port  Arthur  witnessed  during  the  recent  struggle  may 
never  be  repeated.  To  grant  burial  to  the  dead  is  "a  sacred 
duty  toward  the  individual  and  toward  humanity  in  gen- 
eral."=^« 

The  Japanese  were  repeatedly  accused  of  disregarding  the 

•'  Instances  of  the  abuse  of  the  Japanese  and  white  flags  by  the  Rus- 
sians are  also  related  by  J.  H.  de  Forest  in  The  Independent  for  October 

5.  1905- 

^  Art.  2i  of  the  Hague  Regulations. 

"  C/.  Arts.  112  of  the  American  Instructions  and  40  of  the  Russian 
Instructions,  cited  above. 

°^  Guelle,  Precis  des  lots  de  la  guerre,  I,  p.  185.  Guelle  cites  with  ap- 
proval the  following  rule  formulated  by  G.  F.  de  Martens,  Precis,  §  285 ; 
"It  is  contrary  to  the  laws  of  war  to  deprive  the  dead  of  burial.  The 
victor  in  a  battle  should  take  care  of  the  dead  and  wounded.  When  the 
result  of  the  battle  is  indecisive,  suspensions  of  arms  of  one  or  two  days 
during  which  each  side  may  withdraw  his  own  (dead  or  wounded)  are 
sometimes  granted." 

During  the  Spanish-American  War  of  1898,  the  Spaniards,  when  too 
weak  or  few  in  number  to  dig  the  ditches  necessary  for  the  burial  of  the 
dead,  sometimes  gathered  the  bodies  together  into  heaps  and  burned 
them  in  order  to  prevent  the  spread  of  infectious  diseases.  Bonfils- 
Fauchille,  §  1108.  For  sanitary  and  climatic  reasons,  the  Japanese  were 
also  forced  to  burn  the  bodies  of  the  Chinese  dead  in  Manchuria  during 
the  Chino- Japanese  War  in  1894-5,  in  spite  of  the  aversion  of  the  Chi- 
nese for  cremation.    Ariga,  La  Guerre  Sino-Japonaise,  ch.  8. 


RELATIONS    OF    THE    BELLIGERENTS  305 

obligations  of  the  Hague  and  Geneva  Conventions*''  by  bom- 
barding Red  Cross  hospitals,  quarantine  stations  and  hos- 
pital ships  during  the  siege  of  Port  Arthur.  In  November, 
1904,  General  BalashofT,  the  head  of  the  Red  Cross  Society 
at  Port  Arthur,  sent  a  personal  letter  to  the  Associated 
Press'**  charging  the  Japanese  with  a  violation  of  the  rules 
of  civilized  warfare.  He  claimed  that  the  Japanese  fire  had 
"compelled  the  abandonment  by  the  Russians  of  three  plain- 
ly marked  hospital  ships,  and  that  the  wounded  who  were 
aboard  the  half-sunken  steamer  Andara  also  had  to  be  re- 
moved." "These  ships,"  said  General  BalashofT,  "were  an- 
chored where  they  did  not  interfere  with  the  Japanese  fire 
against  the  Russian  warships."  He  further  stated  that  "the 
Japanese,  who  use  balloons  to  direct  their  fire  and  who  drop 
their  shells  with  accuracy  into  the  harbor,  can  not  mistake 
the  hospital  ships,"  and  he  charged  that  they  deliberately 
drove  the  wounded  from  the  ships  for  the  purpose  of  sink- 
ing the  vessels.  "This  occurred  recently,"  continued  Gen- 
eral Balashoff,  "but  earlier  I  noticed  several  instances  of  a 
concentration  of  fire  on  portions  of  the  city  devoted  almost 
exclusively  to  hospitals.  Other  instances  of  uncivilized  war- 
fare are  numerous,  but  I  have  no  time  to  write  them."  In 
December,  1904,  General  Nogi  replied  as  follows'^  to  Gen- 
eral Stoessel,  who  had  complained  of  the  bombardment  of 
Red  Cross  hospitals  at  Port  Arthur : 

"I  have  the  honor  to  assure  you  that  the  Japanese  army,  re- 

"  See  Art.  27  of  the  Hague  Regulations  and  Art.  i  of  the  Geneva  Con- 
vention of  1864.  On  the  inviolability  of  hospital  ships,  see  Arts.  1-8 
of  the  Third  Convention  adopted  by  the  Hague  Conference,  HoUs,  pp. 
123-131  and  463-473.  The  additional  Articles  of  the  Geneva  Convention 
of  1868  have  never  secured  the  formal  sanction  of  the  Powers. 

*  N.  Y.  Times  for  November  21,  1904. 

"See  N.  Y.  Independent  for  December  22,  1904. 


306  THE    RUSSO-JAPANESE    WAR 

specting  humanity  and  treaties  since  the  beginning  of  the  siege, 
has  never  purposely  directed  shells  against  buildings  or  vessels 
flying  the  Red  Cross,  but  the  greater  part  of  the  garrison  is  in- 
visible from  our  gun  positions,  and  as  you  know  shells  do  not 
always  reach  the  place  to  which  they  are  directed,  and  especially 
owing  to  your  long  and  brave  resistance  the  deviation  of  our 
guns  is  becoming  greater  and  greater.  So  with  the  greatest 
regret  we  are  unable  to  guarantee  them  to  reach  the  places  at 
which  they  are  directed. "^^ 

In  the  latter  part  of  March,  1905,  the  French  Govern- 
ment, which  was  intrusted  with  the  protection  of  Russian 
interests  in  Japan  during  the  war,  is  said  to  have  transmitted 
to  Tokio  a  Russian  protest  against  an  alleged  infraction  of 
the  laws  of  war  on  the  part  of  Japan.  It  was  charged  that 
during  the  attack  on  Port  Arthur,  on  March  10,  the  Japanese 
had  fired  over  fifty  projectiles  at  the  quarantine  station  on 
the  island  of  San-Shan-Top,  resulting  in  the  injury  of  nu- 
merous persons.'^  To  this  protest  Baron  Komura,  the  Jap- 
anese Minister  of  Foreign  Affairs,  is  said  to  have  replied 
that  the  Japanese  Government  had  received  no  report  from 
Vice-Admiral  Togo  concerning  the  destruction  of  the  quar- 
antine station;  but,  whether  the  station  had  been  destroyed 
or  not,  the  article  of  the  Hague  Convention  quoted  by  Russia 
in  support  of  her  protest  related  only  to  land  warfare,  the 
Convention  having  left  the  question  of  naval  bombardment 
unsettled.'* 

"The  Peking  correspondent  of  the  London  Times  (see  weekly  ed.  for 
January  27,  1905)  bore  witness  to  the  humanity  of  the  Japanese  at  Port 
Arthur  in  directing  their  fire  on  the  docks,  workshops,  and  warships  in 
the  harbor  rather  than  on  the  buildings  marked  with  the  Red  Cross, 
ahhough  there  were  many  such  in  an  exposed  position.  He  declared  that 
out  of  three  hospital  ships  in  the  harbor,  but  one  was  struck,  and  that  by 
a  single  shot. 

"  N.  Y.  Times  for  March  21,  1905. 

'*  Ibid.,  March  31,  1905.    This  argument  of  Baron  Komura's  is  tech- 


RELATIONS    OF    THE    BELLIGERENTS  307 

In  October,  1904,  the  Japanese  Minister  at  Washington 
is  said  to  have  requested  the  American  State  Department  to 
transmit  to  Russia  a  protest^*  against  the  use  of  Chinese 
clothing  by  bodies  of  Russian  troops  in  violation  of  the 
Hague  Convention.  It  was  explained  in  St.  Petersburg  that, 
owing  to  the  sudden  descent  of  winter,  some  of  the  Russian 
troops  in  Manchuria  were  permitted  to  purchase  the  warm 
outer  garments  or  Chinese  overcoats  worn  by  the  native 
jXDpulation.  It  was  also  stated  that  the  use  of  these  gar- 
ments was  to  be  merely  temporary,  and  that  every  effort 
had  been  made  to  alter  them  in  such  a  manner  as  to  prevent 
any  possibility  of  mistaking  their  wearers  for  Chinamen. 
If  the  facts  were  as  stated,  the  Russian  Commander  who  au- 
thorized these  purchases  appears  to  have  been  well  within 
the  requirements  of  the  Hague  Convention,  which  merely 
requires  the  militia  and  volunteer  corps  as  well  as  the  regu- 

nically  correct.  The  Hague  Regulations,  including  Article  27,  apply  only 
to  land  warfare.  This  article  runs  as  follows:  "In  sieges  and  bombard- 
ments all  necessary  steps  should  be  taken  to  spare  as  far  as  possible 
edifices  devoted  to  religion,  art,  science,  and  charity,  hospitals,  and 
places  where  the  sick  and  wounded  are  collected,  provided  they  are  not 
used  at  the  same  time  for  military  purposes.  The  besieged  should  indi- 
cate these  buildings  or  places  by  some  particular  and  visible  signs,  of 
which  the  assailants  should  previously  be  notified."  It  is  also  true  that 
the  Hague  Convention  left  the  question  of  naval  bombardment  unset- 
tled, but  it  appears  that  both  Count  LamsdorfT  and  Baron  Konuira  erred 
in  confusing  Arts.  25  and  27  of  the  Hague  Regulations.  Article  25  .<;imply 
forbids  the  bombardment  of  undefended  towns,  villages,  habitations  and 
buildings.  From  the  standpoint  of  humanity  and  International  Law, 
there  is  no  more  reason  for  a  violation  of  the  principles  embodied  in 
Articles  25  and  27  by  a  naval  than  by  a  land  force. 

"Sec  London  Times  (weekly)  for  October  21  and  28,  1904.  See  also 
Chicago  Tribune  for  October  21,  1904.  The  correspondence  relating  to 
this  protest  is  not  found  in  the  Foreign  Relations  of  the  United  States 
for  1904. 


308  THE    RUSSO-JAPANESE    WAR 

lars  "to  have  a  fixed  distinctive  emblem  recognizable  at  a 
distance."^" 

The  conduct  of  both  belligerents,  especially  of  the  Jap- 
anese, appears  also  to  have  been  comparatively  free  from  acts 
of  cruelty  and  barbarity.  The  Cossacks  were  accused  by  the 
natives  of  plundering  and  burning  villages  and  farm-houses, 
and  even  of  outrages  on  women  in  northeastern  Korea, ^^ 
and  vague  but  sensational  charges  of  mutilation  of  the  dead 
and  of  the  wounded  were  made  against  the  Japanese  by  the 
Russians  early  in  July,  1904.^^  These  charges  were  met  by 
a  denial  and  counter-charges  against  the  Russians  on  the 
part  of  the  Japanese,  who  cited  a  number  of  specific  in- 
stances, giving  names,  dates  and  places.^^     Although  the 

"  Art.  I.  The  memorandum  issued  by  the  Japanese  Foreign  Office  is 
said  to  have  contained  a  statement  to  the  effect  that  this  use  of  Chinese 
clothing  was  "contrary  to  Art.  23  of  the  supplementary  rules  to  the 
Convention  of  Laws  and  Customs  of  War."   This  is  manifestly  an  error. 

"  London  Times  (weekly)  for  July  I,  1904.  This  same  correspondent 
bears  witness  to  the  excellent  conduct  of  the  Russians  as  well  as  of  the 
Japanese  in  the  district  around  Feng-Hwang-Chem  in  southern  Man- 
churia. 

^  On  the  Russian  charges  against  the  Japanese,  see  the  N.  Y.  Times 
for  July  I  and  3,  1904.  These  charges,  which  are  said  to  have  been 
originally  based  on  the  sensational  declarations  of  a  Russian  novelist 
and  war  correspondent,  were  officially  denied  by  the  Japanese  Govern- 
ment. This  denial  was  generally  accepted  throughout  Europe  and 
America.  The  charges  were  too  vague  and  general  in  their  character 
to  be  trustworthy. 

'°  Thus  the  Chief  of  Staff  of  the  second  Japanese  army  reported  that 
"on  the  15th  of  June  a  petty  officer  and  other  soldiers,  six  in  all,  belong- 
ing to  the  Eighteenth  Infantry  regiment,  encountered,  while  scouting, 
about  fifteen  Russian  troops  at  Chengtsushan,  and  were  killed  after 
hand  to  hand  fighting.  On  the  death  of  these  men  the  Russians  thrust 
their  bayonets  into  their  mouths  and  cut  open  their  lungs,  and  took 
away  the  contents  of  their  pockets. 

"On  the  27th  of  June  Kobayashi  Wachihi,  a  first-class  cavalryman 
belonging  to  the  Third  Cavalry  regiment,  who  was  scouting  at  a  point 
about  four  kilometers  (three  miles)  northeast  of  Heunyocheng,  was  at- 


RELATIONS  OF  THE  BELLIGERENTS         3O9 

Japanese  charges  on  this  head  were  much  more  direct,  spe- 
cific and  authoritative  than  were  those  of  the  Russians,  it  is 
not  to  be  beHeved  that  even  the  Russians  were  guilty  of  out- 
rages or  atrocities  of  this  nature  on  a  large  scale.  These 
were  doubtless  isolated  cases  such  as  come  to  light  in  nearly 
every  war,  for  that  breed  of  degenerates  known  as  hyenas  of 
the  battle-field  is  not  yet  extinct. 

Another  source  of  complaint  on  the  part  of  the  Japanese 
was  the  enlistment  in  the  Russian  military  service  of  crimi- 
nal convicts  from  the  island  of  Sakhalin.  On  May  19, 
1904,  Admiral  Alexieff  issued  a  general  order*"  offering 
special  inducements  to  these  convicts,  including  some  of  the 
most  dangerous  criminals*^  in  the  Russian  Empire,  for  join- 
ing the  Russian  standards.  Two  months  of  active  service 
were  to  count  as  a  year  of  penal  servitude,  and  "colonists" 
— /.  e.,  prisoners  who  are  permitted  to  live  outside  the  pris- 
ons during  a  portion  of  the  time — were  to  have  a  certain 
part  of  their  sentences  remitted. 

tacked  by  tlie  Russians  and  fell  dead  on  the  ground.  Thereupon  about 
twenty  Russian  cavalrymen  surrounded  the  dead  man  and  barbarously 
stabbed  his  dead  body  several  times.  At  this  moment  a  company  of  our 
cavalry  approached  the  scene  and  the  Russians  fled,  leaving  the  body 
of  the  man  to  our  hands."  From  the  Chicago  Tribune  for  July  4,  1904. 
Cf.  the  account  in  the  London  Times  (weekly)  for  July  8,  1904. 

On  July  15  (see  N.  Y.  Times  for  July  18,  1904)  the  War  Office  at 
Tokio  published  a  statement  from  General  Oku's  army  specifying  eleven 
instances  of  Russian  misconduct  in  the  field.  Two  instances  were  given 
of  abuse  of  the  white  flag;  one  of  persistently  firing  on  a  field  hospital 
conspicuously  flying  the  Red  Cross  flag;  two  of  firing  on  men  of  the 
Hospital  corps  who  wore  Red  Cross  badges;  three  of  stabbing,  shoot- 
ing and  slashing  the  wounded;  two  of  shockingly  mutilating  the  dead; 
and  one  of  stealing  cattle  and  horses  and  assaulting  women. 

Tor  the  terms  of  this  order,  see  London  Times  (weekly)  for  May 
27,  and  N.  Y.  Times  for  August  17,  1904. 

"  Out  of  a  total  of  22.167  convicts  on  the  island,  at  least  8,000  arc 
said  to  have  been  charged  with  murder. 


3IO  THE    RUSSO-JAPANESE    WAR 

Although  it  is  nowhere  expressly  stated  that  the  enHst- 
ment  of  convicts  is  a  violation  of  the  law  of  nations,  it  is 
generally  agreed  that  "International  Law  forbids  civilized 
nations  to  enroll  in  their  armies  savages  to  whom  the  laws 
of  war  are  unknown,  or  to  employ  as  auxiliaries  troops 
which  neither  know  nor  respect  the  laws  and  customs  of  civ- 
ilized peoples."*'^  But  this  prohibition  does  not  apply  to  in- 
digenous or  native  races  organized  into  regular  troops  of  a 
civilized  state,  drilled  and  commanded  by  its  regular  officers, 
and  obeying  the  rules  and  customs  of  civilized  warfare.*' 
Whether  Russia  committed  a  violation  of  the  law  of  nations 
in  permitting  the  enlistment  of  these  convicts  would  seem  to 
depend  upon  their  amenability  to  discipline  and  control,  and 
upon  the  question  whether  proper  means  were  taken  to  in- 
sure the  observance  of  the  rules  and  usages  of  civilized  war- 
fare by  these  convicts.    In  any  case,  however,  there  is  some- 

"  This  is  the  identical  language  of  Bluntschli,  §  559,  and  Calvo,  §  2056. 
See  also  Woolsey,  §  133,  p.  213;  Heffter,  §  125,  p.  281;  Bonfils  (Fau- 
chille),  §  1070. 

"See  especially  Woolsey,  p.  213;  Lawrence,  Principles,  pp.  424-26; 
Despagnet,  La  Guerre  Sud-Africaine,  p.  121.  The  latter  author  describes 
at  length  the  charges  against  the  English  for  violations  of  this  rule 
during  the  South  African  War.  During  the  Spanish- American  War  the 
Spanish  Government  protested  against  the  conduct  of  the  United  States 
in  furnishing  arms  and  ammunition  to  the  insurgent  Cubans  and  Fili- 
pinos. See  Le  Fur  in  Revue  Gcncrale  de  Droit  International  Public, 
t.  V,  pp.  753  ff.  But  Le  Fur,  who  charitably  suggests  that  the  Americans 
should  not  be  blamed  too  much  in  view  of  the  tropical  climate  in  these 
islands,  himself  admits  that  the  Spanish  sometimes  contradicted  them- 
selves by  speaking  of  these  people  as  "savage"  at  one  time  and  "civil- 
ized" at  another.  Whatever  violations  of  the  laws  and  customs  of  war 
the  Cubans  and  Tagals  may  have  committed,  the  Americans  were  not 
responsible ;  for  these  peoples  had  revolted  from  Spain,  and  the  Ameri- 
cans simply  went  to  their  assistance. 

The  French  have  been  severely  criticized  for  employing  the  African 
and  Mohammedan  Turcos  against  the  Germans  in  1870,  but  these 
formed  part  of  the  regular  French  army. 


RELATIONS   OF    THE   BELLIGERENTS  3II 

thing  peculiarly  revolting  to  modern  conceptions  of  human- 
ity in  the  employment  of  criminals  for  purposes  of  warfare. 

Each  of  the  belligerents  in  the  war  was  accused  of  an  at- 
tack upon  an  undefended  coast  town  without  giving  pre- 
vious notice  to  the  authorities.  In  the  earlier  days  of  the 
war  (on  March  6,  1904)  a  Japanese  fleet  suddenly  appeared 
off  the  coast  of  Vladivostok  and  bombarded  the  inhabited 
and  undefended  part  of  the  city  as  well  as  the  forts  and  shore 
batteries.**  On  June  20,  1904,  a  fleet  of  six  torpedo  boats 
belonging  to  the  Russian  Vladivostok  squadron  entered  the 
Japanese  harbor  of  Gensan  and,  in  addition  to  burning  two 
Japanese  merchant  vessels  which  they  found  there,  they  are 
said  to  have  fired  about  two  hundred  shots  into  the  town.*^ 
Fortunately  no  serious  damage  appears  to  have  been  done 
in  either  case. 

Article  25  of  the  Hague  Regulations  asserts  that  "the  at- 
tack or  bombardment  of  towns,  villages,  habitations,  or 
buildings  which  are  not  defended,  is  prohibited ;"  and  Art. 
26  declares  that  "the  Commander  of  an  attacking  force,  be- 
fore commencing  a  bombardment,  except  in  the  case  of  an 
assault,  should  do  all  he  can  to  warn  the  authorities."  But 
these  prohibitions,  like  all  of  those  included  in  the  annex  to 
the  Second  Convention  of  the  Hague  Conference,  are  in- 
tended as  a  code  for  the  regulation  of  warfare  on  land,  and 
do  not,  therefore,  strictly  speaking,  apply  to  naval  warfare.** 

"Sec  report  of  Admiral  Alexieff  in  London  Times  (weekly)  for 
March  11,  1904.  The  bombardment  lasted  for  nearly  an  hour,  but  the 
injury  was  very  slicrht.  only  one  person  (a  woman,  and  hence  a  non- 
combatant)  having  been  killed. 

*•  London  Times  (weekly)  for  July  8  and  15.  1904. 

**  It  was  proposed  at  the  Hague  Conference  to  extend  the  interdiction 
of  Article  25  to  bombardment  by  a  naval  force  as  well  as  to  those  on 
land;  but,  because  of  opposition  on  the  part  of  Great  Hritain  to  such  a 
declaration,  action  was  limited  to  the  expression  of  a  "wish"  that  this 


312  THE    RUSSO-JAPANESE    WAR 

The  preamble  to  the  Second  Convention  of  the  Hague  Con- 
ference declares,  however,  that  **in  cases  not  included  in  the 
Regulations,  populations  and  belligerents  remain  under  the 
protection  and  empire  of  the  principles  of  International  Law, 
as  they  result  from  the  usages  established  between  civilized 
nations,  from  the  laws  of  humanity,  and  the  requirements  of 
the  public  conscience.*^ 

Recent  publicists  are  divided  in  their  opinions  as  to 
whether  the  bombardment  of  an  undefended  commercial 
port  or  sea-coast  town  is,  as  a  rule,  permissible,  but  the  ma- 
jority of  them  appear  to  maintain,  either  that  the  same  rules 
should  apply  in  naval  as  in  land  warfare,  or  that  the  exer- 
cise of  the  right,  if  it  exists,  should  be  resorted  to  only  in 
exceptional  cases,  e.  g.,  by  way  of  reprisal  or  on  the  ground 
of  military  necessity.  It  is  also  generally  held  that,  at  least 
whenever  compatible  with  the  military  interests  of  the  at- 
tacking party,  previous  notice  of  intention  to  bombard 
should  always  be  given  to  the  authorities  or  inhabitants  of 
the  place  about  to  be  bombarded.*^ 

proposal  might  be  considered  by  a  future  Conference.  See  Holls,  pp. 
379  and  519;  Pillet,  p.  469;  and  De  Lapradelle  in  Revue  Generale  de 
Droit  International  Public,  t.  VI,  pp.  72,^>-3Z- 

"  Holls,  p.  419.  This  preamble,  too,  applies  strictly  speaking,  merely 
to  warfare  on  land,  but  the  principles  it  announces  are,  we  think,  of 
universal  applicability. 

**  I  have  merely  tried  to  register  the  general  drift  of  opinion  on 
this  subject.  The  variety  of  views  and  general  lack  of  harmony,  which 
still  prevail  among  publicists,  may  be  seen  by  scanning  the  following 
citations  from  leading  authorities  : 

Bonfils  (§  1277)  is  of  the  opinion  that  the  rule  should  be  the  same 
in  naval  as  in  land  warfare. 

Rivier  (Principles,  II,  §  193,  pp.  283-84)  thinks  the  bombardment  of 
an  "exclusively  commercial  port"  justifiable  only  in  exceptional  cases, 
i.  e.,  by  way  of  reprisal  or  on  grounds  of  military  necessity,  as  in  the 


RELATIONS    OF    THE    BELLIGERENTS  3I3 

The  best  recent  practice  on  this  head  is  probably  that  indi- 
cated in  Article  4  of  the  United  States  Code  of  Naval  War- 
analogous  case  of  devastation.  (See  op.  cit.,  p.  265.)  He  considers  pre- 
vious notice  also  desirable  whenever  possible. 

Calvo  (IV,  §  2068)  holds  that  "in  no  case,  under  no  pretext,  is  it 
permissible  to  bombard  open,  unfortified  or  undefended  towns;  to  act 
against  these  as  the  necessities  authorize  one  to  act  against  fortresses 
is  to  violate  all  the  principles  of  the  law  of  nations  and  to  place  oneself 
outside  of  the  law  of  the  nations  which  march  at  the  head  of  civiliza- 
tion." 

Perels  {Manuel,  p.  212)  says:  "Open  towns  and  places  which  are  un- 
defended can  not  be  bombarded ;  it  is  the  same  with  open  places  on  the 
seacoast."   He  does  not  consider  previous  notice  obligatory. 

Bluntschli  (§  554  bis)  is  of  the  opinion  that  "open  towns  which  do  not 
resist  may  be  occupied,  but  it  is  interdicted  to  cannonade  them  without 
necessity."  He  does  not  appear  to  distinguish  between  land  and  naval 
warfare.  Bluntschli  (§  553)  admits  that  it  is  customary  to  give  notice 
of  intention  to  bombard,  but  he  does  not  seem  to  regard  such  previous 
notice  as  necessary  in  all  cases. 

Pillet  {Les  Lois,  etc.,  §  71)  thinks  that  "a  fleet  should  not  bombard  an 
open  place"  and  that  "bombardment  is  only  legitimate  as  a  means  of 
reducing  a  port  which  resists  the  attack  of  the  enemy."  He  admits  that 
recourse  to  bombardment  must  needs  be  more  frequent  in  naval  than 
in  land  warfare,  since  it  is  the  only  means  open  to  a  fleet  of  taking  a 
town  which  resists;  nevertheless  "bombardment  is  only  legitimate  if  it 
have  a  precise  object:  to  take  possession  of  a  place  or  of  a  fleet  which 
has  sought  refuge  in  a  port."  Previous  notice  should  be  given  in  all 
cases  if  possible. 

Woolsey  (pp.  223-24)  says :  "The  bombardment  of  open  undefended 
towns  is  now  unlawful."  He  applies  this  rule  to  undefended  sea-ports 
as  well  as  to  undefended  places  on  land. 

Field  {Code,  §  756  (4)  and  note  5)  thinks  that  the  "bombardment  of 
defenceless  places  should  be  prohibited,  though  it  has  been  regarded  as 
allowable."  He  not  only  insists  upon  notice  of  intention  to  bombard, 
but  upon  the  allowance  of  a  reasonable  time  for  the  removal  of  all  non- 
combatants  (§  757). 

Walker  {Manuel,  p.  142)  says:  "It  is  clear  law  that  only  fortified  and 
defended  places  are,  at  any  rate  in  land  warfare,  liable  to  bombardment, 
and  notice  for  the  benefit  of  non-combatants  is  not  uncommonly  given 
previous  to  the  bombardment  of  a  fortified  town,  but  no  such  notice  is 
legally  necessary." 

Taylor  (§  469)  claims  that  "there  is  no  law  or  practice  which  limits 
bombardment  from  the  sea  to  fortified  places  as  on  land,"  but  he  insists 


314  THE    RUSSO-JAPANESE    WAR 

fare,  which  says :  "The  bombardment,  by  a  naval  force,  of 
unfortified  and  undefended  towns,  villages,  or  buildings  is 

that  "the  bombardment  of  unfortified  and  undefended  towns  and  places 
for  the  non-payment  of  ransom  is  forbidden." 

Lawrence  (Principles,  §  443)  thinks  that  "open  and  undefended  places 
should  not  be  bombarded  at  all ;  and  recent  proposals  to  extort  large 
sums  from  rich  and  defenceless  coast  towns  by  the  agency  of  a  squadron 
whose  guns  should  lay  them  in  ruins  in  case  of  refusal,  are  retrograde 
and  barbarous."  Lawrence  here  refers  to  the  views  of  the  French  Ad- 
miral Aube,  published  in  1882  in  an  article  on  the  naval  warfare  of  the 
future  in  Revue  des  Deux  Mondes.  Admiral  Aube  had  expressed  the 
opinion  that  "armoured  fleets  in  possession  of  the  sea  will  turn  their 
powers  of  attack  and  destruction  against  the  coast  towns  of  the  enemy, 
irrespectively  of  whether  these  are  fortified  or  not,  or  whether  they 
are  commercial  or  military,  and  will  burn  them  and  lay  them  in  ruins, 
or  at  the  very  least  will  hold  them  mercilessly  to  ransom,"  and  he 
claimed  that  this  would  be  the  true  policy  of  France  in  the  event  of  a 
war  with  England.   Cited  by  Hall,  p.  431. 

Hall  (3d  ed.,  §§  140  and  186)  earnestly  combats  these  views,  which 
appear  to  have  found  much  favor  in  French  and  British  naval  circles; 
but  he  unfortunately  lends  the  weight  of  his  great  authority  in  favor 
of  the  opinion  that  regular  war  contributions  may  be  levied  on  unde- 
fended coast  towns,  provided  a  sufficient  force,  which  actually  takes 
temporary  or  permanent  possession,  is  landed.  This  view,  of  course, 
implies  the  ultimate  right  of  bombardment  in  case  of  a  refusal  to  pay. 
For  another  excellent  criticism  of  the  views  of  Admiral  Aube,  see 
Dupuis,  Le  Droit  de  la  Guerre  Maritime,  §§  67-74. 

At  its  Venice  session,  in  1896,  the  Institute  of  International  Law 
(see  Annuaire  for  1896,  pp.  311-12)  asserted  that  "there  is  no  difference 
in  the  laws  of  war  between  the  rules  governing  bombardment  by  land 
forces  or  bombardment  by  naval  forces,"  and  it  was  declared  that  the 
principles  enunciated  in  Articles  32,  ZZ  and  34  of  the  Manual  of  the 
Institute  (Oxford  Code)  were  equally  applicable  to  naval  as  to  land 
bombardments.  It  declared  the  bombardment  of  an  open  town  by  a 
naval  force  inadmissible,  except  (i)  to  obtain  requisitions  or  con- 
tributions necessary  for  the  fleet,  and  (2)  to  destroy  dock-yards,  mili- 
tary establishments,  depots  of  war  munitions,  or  war  vessels  found  in  a 
port.  Bombardment  for  the  purpose  of  exacting  ransom  or  of  bringing 
about  the  general  submission  of  the  country  were  especially  denounced. 
Dupuis  (op.  cit.  note  on  pp.  91  ff.)  considers  these  rules  wise,  except  in 
authorizing  bombardment  in  case  of  a  refusal  to  pay  a  war  contribution. 

Professor  Holland,  who  drew  up  these  rules,  considers  bombardment 
of  an  open  town  lawful  in  the  following  cases:    (i)   "as  a  punishment 


RELATIONS  OF  THE  BELLIGERENTS         315 

forbidden,  except  when  such  bombardment  is  incidental  to 
the  destruction  of  military  or  naval  establishments,  public 
depots  or  munitions  of  war,  or  vessels  of  war  in  port,  or  un- 
less reasonable  requisitions  for  provisions  and  supplies  es- 
sential, at  the  time,  to  such  naval  vessel  or  vessels,  are  forci- 
bly withheld,  in  w^hich  case  due  notice  of  bombardment  shall 
be  given.  The  bombardment  of  unfortified  and  undefended 
towns  and  places  for  the  non-payment  of  ransom  is  forbid- 
den."^^ It  is  impossible  to  say  whether  the  excellent  prin- 
ciples embodied  in  this  article  will  be  followed  in  future 
w^ars,  as  very  few  opportunities  for  such  bombardment  have 
presented  themselves  in  recent  times. °" 

for  disloyal  conduct;  (2)  in  extreme  cases,  as  retaliation  for  disloyal 
conduct  elsewhere;  (3)  for  the  purpose  of  quelling  armed  resistance 
(not  as  a  punishment  for  resistance  when  quelled)  ;  (4)  in  case  of  a 
refusal  of  reasonable  supplies  requisitioned,  or  of  a  reasonable  money 
contribution  in  lieu  of  supplies."  It  would,  he  conceives,  be  unlawful : 
"(i)  for  the  purpose  of  enforcing  a  fancy  contribution  or  ransom;  (2) 
by  way  of  wanton  injury  to  private  property."  Holland,  Studies  in  In- 
ternational Law,  p.  99. 

For  examples  of  famous  sieges  and  bombardments,  see  Guelle,  Precis. 
I,  pp.  109-122  Calvo,  IV,  §§  2067-2096;  and  F.  de  Martens,  III,  pp. 
220  flF. 

*"  Cf.  the  resolution  of  the  Institute  of  International  Law  cited  in 
footnote  above.  In  one  respect  Art.  4  of  the  United  States  Naval  Code 
is  an  improvement  upon  the  recommendation  of  the  Institute.  No  men- 
tion is  made  of  war  contributions  by  way  of  exception.  There  is  no 
good  reason  why  a  fleet  should  levy  such  contributions.  As  a  rule,  it 
can  have  no  need  of  money  to  conduct  its  operations.  See  on  this  point 
Dupuis,  op.  cit.,  note  on  pp.  91-92. 

"The  British  had  no  opportunity  to  bombard  coast  towns  during  the 
Boer  struggle  and  the  United  States  had  no  occasion  to  do  so  during 
the  Spanish-American  War.  The  Germans  were  guilty  of  gross  viola- 
tions of  the  laws  of  warfare  in  respect  to  sieges  and  bombardments 
during  the  Franco-Prussian  War,  but  all  of  the  cases  which  have  come 
under  our  observation  relate  to  sieges  and  bombardments  on  land. 
F.  de  Martens  (III,  220)  characterizes  the  bombardment  of  certain  open 
towns  on  the  Black  Sea  by  the  Turkish  fleet  during  the  Russo-Turkish 
War  in  1877-78  as  a  "violation  of  the  laws  of  war." 


3l6  THE    RUSSO-JAPANESE    WAR 

If  the  Japanese  bombardment  of  Vladivostok  and  the 
Russian  attack  on  Gensan  can  not,  in  view  of  the  diversity 
of  opinion  and  practice  which  exists  on  this  head,  be  unquali- 
fiedly characterized  as  a  violation  of  the  law  of  nations,  it 
is  certainly  not  in  conformity  with  the  best  practice  and  with 
the  law  which  undoubtedly  should  prevail.  They  appear  to 
have  been  justified  by  no  pressing  military  necessity  and 
are  utterly  antagonistic  to  the  demands  of  modern  humani- 
tarianism  and  enlightened  public  opinion. 

On  the  occasion  of  the  bombardment  of  Vladivostok  on 
March  6,  1904,  Admiral  Alexieff  accused  the  Japanese  of 
using  shells  charged  with  lyddite;"  but  it  was  asserted  in 
Tokio  that  the  condition  of  the  wounded  Russians  in  Jap- 
anese Red  Cross  hospitals  conclusively  disproved  such  alle- 
gations,'*^ and  a  high  officer  in  the  Russian  navy  is  quoted 
as  having  stated  that  "the  accusation  against  the  Japanese 
of  using  explosives  to  produce  poisonous  gases  is  based  on  a 
misconception.  They  are  employing  the  same  explosives 
as  other  armies  and  navies.  It  is  notorious  that  the  burst- 
ing of  a  melanite  shell  between  decks  generates  fumes  from 
which  the  men  are  liable  to  asphyxiation,  but  the  Russian 
shell  is  no  better  and  no  worse  than  that  used  by  the  Jap- 
anese."^"^  In  view  of  the  fact  that  very  little  more  was  heard 
concerning  the  use  of  such  shells,  it  may  be  taken  for  granted 
that  very  few,  if  any,  were  used  by  either  belligerent  during 
the  war.'** 

"London  Times  (weekly)  for  March  11,  1504,  p.  162. 

"Associated  Press  Dispatch  in  Chicago  Record-Herald  for  March  13, 
1904. 

"  See  N.  Y.  Times  for  March  18,  1904. 

"  On  July  I,  1904,  General  Mistchenko  reported  from  Liao-Yan  that 
his  cavalry  had  experienced  the  effects  of  lyddite  shells  employed  by 
the  Japanese.    N.  Y.  Times  for  July  2,  1904. 


RELATIONS  OF  THE  BELLIGERENTS         317 

The  Russians,  on  the  other  hand,  were  accused  of  using 
dumdum  bullets.  The  London  Times  Correspondent  at 
Tokio  said  in  July,  1904,"  that  it  "appears  to  be  clearly 
proved  that  the  Russians  in  Manchuria  are  using  dumdum 
bullets,"  and,  in  a  dispatch  dated  September  11,  Marquis 
Oyama  stated  that  "among  the  ammunition  abandoned  by 
the  Russians  at  Liao-Yang,  were  two  kinds  of  dumdum  bul- 
lets, each  resembling  those  for  the  1891  pattern  Russian 
rifle."  Although  no  rifles  which  could  possibly  have  fired 
these  bullets  were  found,  and  although  the  Japanese  were 
unable  to  say  positively  that  any  of  the  wounds  received  by 
their  men  had  been  made  by  dumdum  bullets,  General 
Oyama  asserted  that  the  "fact  of  the  existence  of  the  bullets 
is  uncontrovertible."'^®  In  reply  to  these  charges,  the  Rus- 
sians appear  to  have  maintained  that  the  Japanese  had  made 
the  mistake  of  confounding  dumdum  bullets  "with  the  bul- 
lets used  by  the  Russians  in  their  quick-firing  guns."^' 

Although  these  charges  against  the  Japanese  of  the  use  of 
lyddite  shells,  as  well  as  the  counter-charges  against  the  Rus- 
sians of  the  employment  of  dumdum  bullets,  appear  to  rest 
upon  an  insufficient  amount  of  evidence,^*  they  may  serve  to 
recall  the  three  Declarations  of  the  Hague  Conference,  which 
are  as  follows : 

I.    "The  Contracting  Powers  agree  to  prohibit,  for  a  term  of 

"See  London  Times  (weekly)   for  July  29,  1904. 

"N.  Y.  and  London  Times  for  September  12,  1904.  For  confirmation 
of  Marshall  Oyama's  statement,  see  De  Forest  in  the  N.  Y.  Independent 
for  Oct.  5,  1905,  p.  795. 

"St.  Petersburg  Dispatch  in  London  Times  (weekly)  for  September 
23,  1904,  p.  612. 

"  It  must,  however,  be  admitted  that  the  evidence  in  support  of  the 
Japanese  charges  against  the  Russians  is  much  stronger  than  that  in 
support  of  the  Russian  charges  against  the  Japanese. 


3l8  THE    RUSSO-JAPANESE    WAR 

five  years,  the  launching  of  projectiles  and  explosives  from  bal- 
loons, or  by  other  methods  of  a  similar  nature."^® 

2.  "The  Contracting  Powers  agree  to  abstain  from  the  use 
of  bullets  which  expand  or  flatten  easily  in  the  human  body, 
such  as  bullets  with  a  hard  envelope  which  does  not  entirely 
cover  the  core,  or  is  pierced  with  incisions." 

3.  "The  Contracting  Powers  agree  to  abstain  from  the  use 
of  projectiles,  the  object  of  which  is  the  diffusion  of  asphyxiat- 
ing or  deleterious  gases."®" 

The  Russian  and  Japanese  rules  and  regulations  apper- 
taining to  the  treatment  of  prisoners  of  war  have  been  given 
in  the  previous  chapter.     They  seem  to  show  excellent  in- 

"  This  agreement  terminated  on  July  29,  1904,  but  neither  of  the 
belligerents  appear  to  have  taken  advantage  of  this  fact  during  the  re- 
mainder of  the  war. 

"Holls,  Peace  Conference,  pp.  Z77,  455,  459,  461,  489.  England  did 
not  sign  any  of  these  Declarations  and  the  United  States  only  signed 
the  first.  Captain  Crozier,  one  of  the  representatives  of  the  United 
States,  proposed  the  following  formula  as  a  substitute  for  the  second 
Declaration :  "The  use  of  bullets  which  inflict  wounds  of  useless  cruelty, 
such  as  explosive  bullets  and  in  general  every  kind  of  bullet  which  ex- 
ceeds the  limits  necessary  for  placing  a  man  immediately  hors  de  com- 
bat, should  be  forbidden ;  but  the  Conference  refused  even  to  vote  upon 
this  amendment.  For  the  defence  by  Great  Britain  of  her  use  of  the 
dum-dum  bullet  and  the  views  of  Captain  Crozier,  see  Holls,  pp.  98- 
117  and  511-514.  Charges  against  Great  Britain  of  the  employment 
of  lyddite  shells  as  well  as  dum-dum  bullets  were  made  by  General 
Joubert  during  the  Boer  War.  On  January  13,  1900,  a  note,  published  in 
the  English  journals,  informed  the  world  that  the  British  Government 
had  decided,  in  deference  to  the  Hague  Convention,  to  stop  the  manu- 
facture of  such  bullets.  It  is  still  a  matter  of  controversy  between 
English  and  Continental  publicists  as  to  whether  the  use  of  dum-dum 
bullets  is  or  is  not  a  violation  of  the  Declaration  of  St.  Petersburg  of 
1868,  the  preamble  of  which  declares  the  "employment  of  arms  which 
uselessly  aggravate  the  sufferings  of  disabled  men,  or  render  their  death 
inevitable,"  to  be  "contrary  to  the  laws  of  humanity."  For  the  Continen- 
tal view,  see  especially  Bonfils-Fauchille,  §  1069;  Desjardins  in  Revue 
des  Deux  Mondcs  for  Mars-Avril,  1900,  pp.  44  ff;  Despagnet,  La 
Guerre  Sud-Africaine.  pp.  10  ff  and  211  f ;  and  De  Lapradelle  in  Revue 
Gencrale  de  Droit  International  Public,  VI  (1899),  pp.  691-700. 


RELATIONS  OF  THE  BELLIGERENTS         319 

tentions  on  both  sides,  and  are  certainly  in  conformity  with 
the  principles  of  International  Law.  Let  us  now  see  in  what 
spirit  and  with  what  degree  of  good  faith  these  rules  were 
carried  out. 

All  the  witnesses  who  have  given  evidence  (and  they  are 
numerous)  ^^  speak  in  the  highest  terms  of  the  treatment  of 
Russian  prisoners,  and  especially  of  the  sick  and  wounded, 
on  the  part  of  the  Japanese.  This  "pagan"  nation  of  war- 
riors appears  indeed  to  have  set  up  new  standards  of  Inter- 
national Law  and  morality  in  this  respect  for  the  future 
guidance  and  imitation,  let  us  hope,  of  the  so-called  Christian 
nations  of  the  West.  Within  a  few  weeks  after  the  outbreak 
of  the  war  Japan  made  arrangements  for  putting  into  opera- 
tion the  provisions  of  the  Hague  Conference  for  the  treat- 
ment of  prisoners.  In  addition  to  the  Instructions  of  Feb- 
ruary 19,  1904,  cited  in  the  previous  chapter,  rules  regulat- 
ing the  free  transmission  of  letters,  money  orders,  and  other 
articles  between  prisoners  and  their  friends  in  their  own 
country  were  issued  on  March  3,  and  a  Bureau  of  Informa- 
tion for  the  benefit  of  the  prisoners  and  their  friends  was  es- 
tablished in  accordance  with  Article  14  of  the  "Hague  Reg- 
ulations Respecting  the  Laws  and  Customs  of  War  on 
Land"  on  February  21,  1904.     This  Bureau  seems  to  have 

"£.  g.  George  Kennan  in  the  Outlook  for  September  10  and  October 
29,  1904;  Alfred  Stead  in  the  Fortnightly  Reznew  for  February,  1905; 
editorial  in  Chicago  Tribune  for  July  2,  1905;  summary  of  the  report  of 
the  United  States  Minister  at  Tokio  to  the  State  Department  at  Wash- 
ington in  N.  Y.  Times  for  April  29,  1904;  Special  Cablegram  to  the 
London  Times  for  May  17,  1904;  Tokio  Dispatch  to  N.  Y.  Times  for 
June  27,  1904;  passage  from  letter  from  a  Russian  naval  officer,  pub- 
lished in  London  Times  (weekly)  for  July  I,  1904;  Mrs.  C.  F.  Mc- 
Williams  in  Harper's  Weekly  for  September  30,  1905 ;  Special  to  the 
N.  Y.  Times  on  July  24,  1904;  Art.  on  "Foreign  Affairs."  by  Dr.  E.  J. 
Dillon  in  Contemporary  Review  for  August,  1904,  pp.  286  ff. 


320  THE   RUSSO-JAPANESE    WAR 

worked  well  and  to  have  given  entire  satisfaction  to  the 
Russian  prisoners  and  their  friends.  Every  ten  days  the 
French  Minister  at  Tokio,  who  was  charged  with  the  pro- 
tection of  Russian  interests  in  Japan,  is  said  to  have  received 
lists  of  the  Russian  dead,  wounded,  and  prisoners  (so  far 
as  these  were  known),  and  to  him  was  delivered  the  prop- 
erty of  the  dead.®^ 

Referring  to  the  kind  treatment  by  the  Japanese  of  the 
Russians  on  the  Yalu  early  in  May,  1904,  a  special  cable- 
gram to  the  London  Times  for  May  17,  1904,  says:  "Those 
in  the  hospital  are  most  carefully  treated.  Their  lodging  is 
superior  to  that  of  the  Japanese  wounded.  The  Japanese 
guards  fraternize  with  their  charges  and  show  active  sym- 
pathy, spending  their  microscopic  pay  for  cigarettes  for  the 
prisoners."  Referring  to  the  considerate  conduct  of  the 
Japanese  in  behalf  of  the  friends  of  those  Russians  who  had 
been  killed  in  battle,  a  St.  Petersburg  dispatch  to  the  Lon- 
don Tunes,  dated  October  12,  1904,  says:  "The  General 
Staff  now  regularly  receives  through  the  intermediary  of 
the  French  Embassy  in  St.  Petersburg  large  numbers  of 
carefully  fastened  packets  which  are  forwarded  by  the  Jap- 
anese military  authorities.  They  contain  objects  of  value 
of  all  kinds,  such  as  jewels,  cigar  cases,  purses,  watches,  gold 
crosses  and  sums  of  money  (sometimes  even  single  rouble 
pieces)  found  by  the  Japanese  on  the  bodies  of  Russian  of- 
ficers and  soldiers  buried  by  them  after  battles.  The  receipt 
of  the  packets  constitutes  an  irrefutable  proof  of  the  false- 
ness of  the  statements  which  have  found  credence  here  to 
the  effect  that  the  Japanese  despoil  the  dead  and  wounded 
on  the  battlefield.    The  same  scrupulous  regard  is  shown  in 

"  N.  Y.  Times  for  July  25,  1905. 


RELATIONS    OF    THE    BELLIGERENTS  32I 

the  hospitals  and  prisons  in  which  Russian  prisoners  in  Japan 
are  confined."®^ 

One  of  our  most  impartial  and  capable  witnesses,  George 
Kennan,"*  testifies  that  "J^P^"  treats  the  wounded  soldiers 
of  her  enemy  better,  in  some  respects,  than  her  own.  They 
are  humanely  dealt  with  on  the  battefield  and  skilfully  cared 
for  in  the  hospitals ;  their  daily  ration  is  more  generous  than 
that  of  wounded  Japanese ;  their  mail  goes  without  postage, 
and  packages  for  them  pay  neither  customs  duty  nor  freight ; 
and  detailed  statements  of  their  condition  in  respect  to  health 
are  made  at  short  intervals  to  the  French  Legation  for  trans- 
mission to  Russia." 

In  speaking  of  the  Japanese  attack  on  Port  x\rthur  and 
of  the  terms  of  the  surrender  and  taking  over  of  that  for- 
tress, Mr.  Alfred  Stead^^  does  not  hesitate  to  say  that  "the 
Japanese  have  set  up  new  standards  of  conduct,  new  rules 
of  international  morality  for  the  world."  He  considers  the 
Japanese  treatment  of  the  Russian  sick  and  wounded  to  have 
been  "beyond  criticism,"  and  in  support  of  this  view  he 
makes  the  statement  that  before  the  fall  of  Port  Arthur  the 
Japanese  medical  authorities  had  prepared  stores  for  20,000 
men.  This  in  spite  of  the  fact  that  several  Russian  officers 
had   broken  their  parole  and   that   hundreds   of  Japanese 

"  The  scrupulous  care  shown  by  the  Japanese  in  returning  the  effects 
of  the  Russian  dead,  found  on  the  battlefield,  was  highly  commended 
by  the  Manchurian  Army  Vcstnik,  a  newspaper  published  at  the  Rus- 
sian theater  of  war  under  the  sanction  of  the  Russian  officials.  It  an- 
nounced that  General  Kurnpatkin  had  recommended  to  his  commanders 
the  observance  of  a  similar  practice  regarding  the  Japanese  dead.  See 
the  Chicago  Tribune  for  November  16,  1904. 

•*  In  the  Outlook  for  October  29,  1904. 

"See  the  Fortnightly  Rez-icw  for  February,  1905. 


322  THE    RUSSO-JAPANESE    WAR 

wounded  in  the  fierce  assaults  on  Port  Arthur  appear  to  have 
died  in  consequence  of  neglect  on  the  part  of  the  Russians.®^ 

It  appears  that  not  only  were  the  Russians  confined  in 
Japanese  prisons  and  hospitals  provided  with  all  necessary 
material,  comforts  and  conveniences,  but  that  facilities  were 
afforded  for  recreation  and  instruction.  They  had  cards, 
music,  and  plenty  of  exercise,  and  schools  were  opened  in 
which  languages  were  taught  and  lessons  in  sanitation 
given.  ^^ 

Of  the  Russian  treatment  of  Japanese  prisoners,  less  is  ap- 
parently known  than  of  the  Japanese  treatment  of  Russian 
prisoners.  From  such  evidence  as  we  have,  it  appears,  how- 
ever, that  those  Japanese  prisoners  who  fell  into  the  hands  of 
the  Russians  were,  as  a  rule,  well  cared  for,®^  except  at  Port 
Arthur. 

During  the  summer  months  of  the  year  1904  there  was 
considerable  complaint  on  the  part  of  the  Japanese  because 
of  the  failure  of  the  Russians  to  furnish  them  (the  Japanese) 
with  information  concerning  their  prisoners,^®  although  it 

"  See  the  remarkable  dispatch  in  the  London  Times  for  April  22, 
1905,  from  its  Tokio  Correspondent.  See  also  the  comments  of  the  Lon- 
don Spectator  for  April  29,  1905. 

"  See  especially  an  article  in  Harper's  Weekly  for  September  30, 
1905,  by  Mrs.  C.  F.  McWilliams,  entitled,  "What  Russia  Has  to  Pay 
For." 

"*  See,  e.  g.,  a  St.  Petersburg  dispatch  to  the  London  Times,  dated 
May  27,  1904;  and  the  Army  Order  issued  by  General  Kuropatkin,  re- 
ported in  N.  Y.  and  London  Times  for  June  30,  1904. 

"  For  example,  a  Washington  dispatch  to  the  London  Times 
(weekly)  for  July  29,  1904,  states  that  "in  spite  of  repeated  requests, 
Mr.  McCormick,  the  United  States  Minister  at  St.  Petersburg,  had  been 
unable  to  obtain  the  names  of  Japanese  prisoners  who  had  been  wounded 
and  captured  in  the  assaults  on  Port  Arthur.  This  was  not  the  only 
instance  in  which  the  efforts  of  our  Legation  at  St.  Petersburg  appear  to 
have  been  unavailing. 


RELATIONS  OF  THE  BELLIGERENTS         323 

would  appear  that  a  Prisoner's  Bureau  had  been  estabhshed 
in  St.  Petersburg  under  the  Presidency  of  Professor  de  Mar- 
tens as  early  as  May  5,  1904.'"  An  arrangement  betweeen 
the  Prisoners'  Bureaus  in  Tokio  and  St.  Petersburg  was 
finally  concluded  in  the  latter  part  of  September,  1904.  It 
provided  that  information  regarding  the  Japanese  prisoners 
in  the  custody  of  Russia  be  communicated  to  the  Japanese 
Legation  in  Berlin  by  the  St.  Petersburg  Bureau,  and  that 
information  regarding  the  Russian  prisoners  in  Japan  be 
communicated  to  the  Russian  Legation  in  Peking.'* 

Our  review  of  the  relations  of  the  belligerents  with  each 
other  during  the  Russo-Japanese  War  has  shown  that,  while 
there  were  a  considerable  number  of  alleged  violations  of  the 
rules  of  civilized  warfare,  especially  on  the  part  of  Russia, 
these  rules  were  on  the  whole  fairly  well  observed  by  both 
belligerents.  The  violations,  even  when  proven,  were 
wholly  exceptional  and  were  comparatively  few  in  number 
and  of  minor  importance  considering  the  duration  of  the 
war  and  the  magnitude  and  vigor  of  military  operations.  In 
this  respect  this  war  ranks  perhaps  as  high  as  any  in  history 
with  the  possible  exception  of  the  Spanish-American  War. 
Russia  was  much  more  regardful  of  the  rights  of  belliger- 
ents than  of  those  of  neutrals,  and  Japan  not  only  set  a  high 
and,  in  some  respects,  new  standard  of  International  Law 
and  morality,  and  her  conduct  won  for  her  words  of  praise 
and  admiration  from  the  enemy.  "They  are  a  most  valorous 
foe,"  General  Kuropatkin  is  reported  to  have  said  to  a  war 
correspondent,  "and  are  most  correct  in  observing  the  arts 

'•  See  N.  Y.  Times  for  June  27,  1904. 

"See  London   Times  (weekly)   for  September  30,  1904.    No  further 
complaints  appear  to  have  been  made. 


324  THE    RUSSO-JAPANESE    WAR 

of  war.    In  the  latter  respect  it  is  the  most  agreeable  war  I 
have  ever  experienced."^^ 

As  in  the  war  with  China,  Japan  sent  trained  international 
jurists  with  each  army  corps  to  act  as  advisors  on  Interna- 
tional Law.  Her  conduct  throughout  the  war  was  marked 
by  the  utmost  regard  for  the  forms  and  precedents  as  well  as 
the  principles  of  the  law  of  nations,  and  she  showed  the  most 
scrupulous  regard  for  the  rights  of  non-combatants,  and  of 
prisoners,  more  especially  of  the  sick  and  wounded  of  the 
enemy. 

^^  See  the  Chicago  Tribune  for  October  16,  and  N.  Y.  Times  for 
October  17,  1904.  For  other  Russian  tributes  to  the  valor  and  humanity 
of  the  Japanese,  see  the  London  Times  (weekly)  for  October  21  and 
November  25,  1904  pp.  677  and  755. 


CHAPTER  XII 

The  Relations  Between   England  and  the  United 

States  as  Affected  by  the  Far  Eastern 

Question  and  the  War 

It  is  the  purpose  of  this  chapter  to  try  to  show  how  the  co- 
operation of  England,  Japan  and  the  United  States  in  the 
Far  East  has  strengthened  the  friendship  between  England 
and  the  United  States  so  auspiciously  formed  during  the 
Spanish-American  War. 

Among  the  many  remarkable  volte-faces  in  the  history  of 
international  relations,  none  is  perhaps  more  interesting  in 
itself  or  destined  to  be  more  far-reaching  in  its  ultimate  ef- 
fects on  the  future  of  civilization  than  the  changed  attitude 
toward  each  other  of  the  peoples  and  Governments  of  Eng- 
land and  the  United  States  during  recent  years.  Only  a  de- 
cade ago  the  American  people,  almost  to  a  man,  were  roused 
to  a  frenzy  of  patriotic  fervor  by  President  Cleveland's 
startling  message  of  December,  1895,  threatening  England 
with  war  unless  she  consented  to  submit  a  boundary  dispute 
between  herself  and  Venezuela  to  arbitration.  It  then 
seemed  as  if  the  spirit  of  hatred  and  suspicion  against  Eng- 
land transmitted  to  us  by  our  forefathers  would  never  die 
out.  This  spirit  had  been  kept  alive  after  the  wars  of  the 
Revolution  and  of  181 2  by  a  variety  of  real  and  imaginary 
grievances,  including  trade  rivalries  and  boundary  disputes, 
and  it  was  again  renewed  after  the  Civil  War  as  a  result, 
among  other  things,  of  the  Alabama  and  Bering  Sea  contro- 
versies. 


326  THE    RUSSO-JAPANESE    WAR 

But  a  great  change  for  the  better  has  taken  place  in  the 
relations  between  the  two  greatest  branches  of  the  so-called 
Anglo-Saxon  race,  or  rather  between  the  parent  trunk  and 
its  largest  branch.  There  now  exists  an  unspoken,  but 
genuine  friendship,  based  upon  mutal  sympathies  and  in- 
terests, between  the  peoples  of  England  and  the  United 
States.  Although  this  silent  understanding  has  as  yet  found 
no  adequate  expression,  either  in  words  or  acts,  it  has  af- 
fected the  formal  relations  between  the  two  Governments, 
and  is  stronger  in  purpose  and  wider  in  scope  than  mere 
words  or  a  formal  agreement  could  possibly  make  it.  There 
is  a  growing  conviction  in  both  countries,  not  merely  that 
each  Power  will,  in  the  future,  refrain  from  attempting  to 
injure  the  vital  interests  of  the  other,  but  that  neither  would 
permit  serious  harm  to  the  other  at  the  hands  of  a  third 
Power,  and  that  both  will  try  to  work  together  in  friendly 
rivalry  at  the  solution  of  the  great  problems  set  by  modern 
civilization. 

It  may  not  be  out  of  place,  however,  before  entering  upon 
our  main  theme,  to  emphasize  the  fact  that,  as  far  as  the 
people  of  the  United  States  are  concerned,  this  friendship 
or  change  of  heart — a  change  of  heart  amounting  almost  to 
a  conversion — had  its  main  source  or  origin  in  the  friendly 
and  sympathetic  attitude  toward  us  assumed  by  the  people 
and  Government  of  Great  Britain  during  the  Spanish-Amer- 
ican War.  During  that  war  it  apparently  dawned  upon  the 
people  of  the  United  States  for  the  first  time  that,  among 
European  peoples,  the  English  alone  had  any  real  sympathy 
with,  or  even  understanding  of,  our  actual  aims  and  motives 
in  undertaking  to  drive  the  Spaniards  out  of  Cuba.  Al- 
though England's  sympathy  with  our  policy  during  the 
Spanish-American  War  was  not  reciprocated  by  us  during 


RELATIONS    OF    ENGLAND    AND    THE    UNITED    STATES        ^t-J 

the  Boer  War,  the  altitude  of  our  Government  was  perfectly- 
correct  during  that  struggle,  and  the  interests  of  Great 
Britain  in  South  Africa  were  entrusted  to  the  American 
Consul  at  Pretoria,  as  the  interests  of  the  United  States  had 
been  entrusted  to  the  British  legation  at  Madrid  during  the 
previous  war.^ 

The  acquisition  of  the  Philippine  Islands  at  the  close  of 
the  Spanish-American  War  gave  us  a  definite  foothold  and 
greatly  increased  our  interests  in  the  Orient,  and  imposed 
upon  us  some  of  the  burdens  and  responsibilities  of  an  Asi- 
atic Power.  At  that  time  (in  1898)  China  was  in  process  of 
partition  or  dismemberment  into  "spheres  of  interest"'  and 
"leases"  by  leading  European  Powers.  The  influence  of 
Russia  was  then  all-powerful  at  Peking;  for,  as  a  result  of 
her  successful  intervention  in  the  Chino- Japanese  War  and 
by  guaranteeing  a  four  per  cent,  loan  to  China  of  400.000.- 
000  francs.  Russia  had  placed  China  under  a  debt  of  fear 
and  gratitude. 

Following  the  example  of  Germany,  who  had  exacted 
from  China  the  lease  of  the  Bay  of  Kiao-chau  along  with 
valuable  mining  and  railway  privileges  in  the  province  of 
Shan-tung  as  indemnity  for  the  murder  of  two  German 
priests,  and  using  this  bad  example  as  a  pretext,  Russia  had 
secured,  on  March  27,  1898,  the  lease  of  Port  Arthur,  and 
also  the  concession  of  a  new  railway  in  southern  Manchuria 
in  addition  to  the  valuable  concessions  which  she  had  already 
obtained  in  1896. 

Great  Britain  did  not  even  enter  a  formal  protest  against 
these  immoral  and  high-handed  proceedings;"  but  in  order 

'  See  llonsc  Doc.  (Foreign  Relations  for  1899),  pp.  .349-351- 
'  Great   Britain  failed  to  secure  the  opening  of   Port   Arthur  to  the 
world,    l)iU    Dalny    was    made    an    open    port.      On    January    17,    1898, 


328  THE    RUSSO-JAPANESE    WAR 

to  restore  the  balance  of  power  on  the  Gulf  of  Pe-chi-li,"  the 
British  Government  leased  and  occupied  Wei-hai-wei,  oppo- 
site Port  Arthur, — an  act  which,  be  it  said  in  passing,  met 
with  the  approval  of  Japan.^  France  also  demanded  and 
obtained  as  her  share  of  the  spoils  the  lease  of  the  Kwang- 
chau  Bay  in  southern  China. 

The  principle  of  the  territorial  integrity  of  the  Chinese 
Empire  had  thus  been  violated  in  the  most  open  and  flagrant 
manner  by  Germany,  Russia,  and  France ;  and  Great  Britain, 
too,  had  been,  albeit  reluctantly,  forced  to  follow  suit  and 
abandon  her  weak  and  apparently  half-hearted  attempts  to 
uphold  that  policy  in  the  Far  East.  On  April  28,  1899,  Eng- 
land even  entered  into  an  agreement  with  Russia  engaging 
"not  to  seek  for  her  own  account,  or  on  behalf  of  British 
subjects  or  of  others,  any  railway  concessions  to  the  north 
of  the  Great  Wall  of  China,  and  not  to  obstruct,  directly  or 
indirectly,  applications  for  railway  concessions  in  that  re- 
gion supported  by  the  Russian  Government."     Russia,  on 

Sir  Michael  Hicks-Beach,  then  Chancellor  of  the  Exchequer,  had  de- 
clared emphatically  in  a  public  speech  that  the  door  must  not  be  closed 
in  China.  He  said  that  the  British  Government  did  "not  regard  China 
as  a  place  of  conquest  or  acquisition  by  any  European  or  other  Power," 
and  that  it  was  "absolutely  determined  at  whatever  cost,  even — and  I 
wish  to  speak  plainly — if  necessary  at  the  cost  of  war,  that  the  door 
shall  not  be  shut."  See  London  Times  for  January  18,  1898.  In  a  com- 
munication to  Sir  N.  O'Conor,  dated  March  28,  1898,  Lord  Salisbury 
said :  "Speaking  generally,  it  may  be  said  that  the  policy  of  this  country 
is  effectively  to  open  China  to  the  commerce  of  the  world  and  that  our 
estimate  of  the  action  of  other  Powers  in  the  Far  East  depends  on  the 
degree  to  which  it  promotes  or  hinders  the  attainment  of  this  object.  It 
follows  from  this  that  the  occupation  of  territory  by  foreign  Powers  is 
to  be  judged  by  the  results,  direct  and  indirect,  immediate  and  remote, 
which  it  is  likely  to  have  on  the  commercial  interest  of  the  world,  and 
the  right  of  all  nations  to  trade  within  the  limits  of  the  Chinese  Empire 
on  equal  terms."  Blue  Book  on  China,  No.  i  (1898),  No.  133. 
"China,  No.  i  (1899),  Nos.  35,  49,  79,  81,  107,  etc. 


RELATIONS    OF    ENGLAND    AND    THE    UNITED    STATES       329 

her  part,  engaged,  in  similar  terms,  not  to  seek  any  railway 
concessions  in  the  basin  of  the  Yang-tse  in  behalf  of  Russian 
subjects.* 

On  October  i6,  1900,  while  she  was  still  engaged  in  her 
struggle  with  the  Boers,  England  even  entered  into  an 
agreement  with  Germany  in  which,  it  is  true,  both  Powers 
disclaimed  territorial  designs  upon  China  and  mutually  en- 
gaged to  uphold  the  principle  of  the  open  door  there ;  but  it 
was  also  stipulated  that  "in  case  of  another  Power  making 
use  of  complications  in  China  in  order  to  obtain  under  any 
form  whatever  such  territorial  advantages,  the  two  Con- 
tracting Parties  reserve  to  themselves  the  right  to  come  to 
a  preliminary  understanding  as  to  the  eventual  steps  to  be 
taken  for  the  protection  of  their  own  interests  in  China. ° 
By  this  agreement  the  principle  of  a  balance  of  power  in  the 
Far  East  was  practically  suggested  as  a  possible  alternative 
or  substitute  for  that  of  territorial  integrity. 

It  will  thus  be  seen  that  China  was  in  sore  need  of  a 
champion®  when  Secretary  Hay  stepped  out  upon  the  arena 
of  Asiatic  politics  and  issued  his  now  famous  Circular  Note 
of  September  6.  1899,  to  the  Powers  in  order  to  "maintain 
an  open  market  for  all  the  world's  commerce  and  to  remove 
dangerous  sources  of  international   irritation."     Mr.   Hay 

*  For  the  text  of  the  Anglo-Russian  Agreement,  see  China,  No.  2 
(1899),  No.  138.  See  also  Beveridge,  The  Russian  Advance,  Appendix, 
pp.  481  ff.,  and  Hosie,  Manchuria,  pp.  64-65. 

"  For  this  agreement  and  the  correspondence  relating  thereto,  see 
China,  No.  5  (1900),  No.  i. 

'  In  1898-99  China,  or  rather  British  interests  in  China,  found  a  strong 
champion  in  Lord  Beresford,  who  published  the  results  of  his  investiga- 
tions and  observations  in  China  in  1899.  His  work,  which  appears  to 
have  been  widely  read,  bore  the  significant  title,  "The  Break-up  of 
China."  Lord  Beresford's  mission,  which  was  of  an  essentially  com- 
mercial character,  was,  however,  not  an  official  one. 


33^  THE    RUSSO-JAPANESE    WAR 

instructed  our  American  representatives  abroad  to  endeavor 
to  obtain  from  each  of  the  Powers  claiming  "spheres  of  in- 
terest" in  China  formal  assurances  to  the  following  effect : 
( I )  that  it  would  not  interfere  with  any  treaty  port  or  with 
the  vested  interest  of  any  nation  within  a  so-called  "sphere 
of  interest"  or  leased  territory  which  such  nation  might 
have  in  China;  (2)  that  it  would  maintain  the  Chinese 
treaty  tariff  (except  in  "free  ports")  under  Chinese  man- 
agement, i.  c,  to  guarantee  equality  of  treatment  for  all  na- 
tions under  the  most  favored  nation  clause;  and  (3)  that 
there  shall  be  equality  of  treatment  for  all  nations  in  respect 
to  harbor  dues  and  railroad  charges.'^  By  March  20,  1900, 
favorable  replies  from  all  the  Powers  concerned — Great 
Britain,  Germany,  France.  Italy,  Russia,^  and  Japan — had 

'See  House  Doc,  Foreign  Relations  (1899),  56th  Congress,  first  ses- 
sion, pp.  131  ff. 

*  The  reply  of  Russia  had  not  been  without  a  significant  reservation. 
"As  to  the  ports  now  opened,  or  hereafter  to  be  opened  to  foreign  com- 
merce by  the  Chinese  Government,  and  which  lie  beyond  the  territory 
leased  to  Russia,  the  settlement  of  the  question  of  customs  duties  be- 
longs to  China  herself,  and  the  Imperial  Government  (of  Russia)  has 
no  intention  whatever  of  claiming  any  privileges  for  its  own  subjects  to 
the  exclusion  of  other  foreigners."  But  "in  so  far  as  the  territory  leased 
by  China  to  Russia  is  concerned,  the  Imperial  Government  (of  Russia) 
has  already  demonstrated  its  firm  intention  to  follow  the  policy  of  the 
'open  door'  by  creating  Dalny  (Ta-lien-wan)  a  free  port;  and  if  at 
some  future  time  that  port,  although  remaining  free  itself,  should  be 
separated  by  a  custom-limit  from  other  portions  of  the  territory  in  ques- 
tion, the  custom  duties  would  be  levied,  in  the  zone  subject  to  the  tariff, 
upon  all  foreign  merchandise  without  distinction  as  to  nationality."  All 
the  Powers  except  Italy  made  their  assent  to  the  desired  declarations 
conditional  upon  a  similar  assent  on  the  part  of  all  the  other  interested 
Powers.  The  reply  of  Great  Britain  was  the  most  explicit  and  compre- 
hensive, for  she  specifically  included  "the  leased  territory  of  Wei-hai- 
wei  and  all  territory  in  China  which  may  hereafter  be  acquired  by 
Great  Britain  by  lease  or  otherwise,  and  all  spheres  of  interest  now 
held  or  that  may  hereafter  be  held  in  China."  See  House  Doc,  cited 
above. 


RELATIONS    OF    ENGLAND    AND    THE    UNITED    STATES        33 1 

been  received,  and  Mr.  Hay  was  able  to  announce  that  the 
consent  of  each  nation  consulted  would  be  considered  "final 
and  definite." 

In  his  communication  of  September  22,   1899,  to  Lord 
Salisbury,  our  ambassador  at  the  Court  of  St.  James,  Mr. 
Choate,  called  special  attention  to  the  fact  that  the  interests 
of  England  and  the  United  States  in  the  maintenance  of 
trade  and  commerce  in  the  Far  East  differed  "not  in  charac- 
ter, but  in  degree  only,"  and  he  observed  that  our  President 
conceived  such  action  as  that  asked  for  "to  be  in  exact  ac- 
cord with  the  uniformly  declared  policy  and  traditions"  of 
Great  Britain.     "He  (the  President)   understands  it  to  be 
the  settled  policy  and  purpose  of  Great  Britain  not  to  use 
any  privileges  which  may  be  granted  to  it  in  China  as  a 
means  of  excluding  any  commercial  rivals,  and  that  free- 
dom of  trade  for  it  in  that  empire  means  freedom  of  trade 
for  all  the  world  alike.     Her  Majesty's  Government,  while 
conceding  by  formal  agreements  with  Russia  and  Germany 
the  possession  of  'spheres  of  influence  or  interest'  in  Chma, 
in  which  they  are  to  enjoy  special  rights  and  privileges,  par- 
ticularly in  respect  to  railroads  and  mining  enterprises,  has 
at  the  same  time  sought  to  maintain  what  is  commonly 
called  the  'open  door'  policy,  to  secure  to  the  commerce  and 
navigation  of  all  nations  equality  of  treatment  within  such 
'spheres.'     The  maintenance  of  this  policy  is  alike  urgently 
demanded  by  the  commercial  communities  of  our  two  na- 
tions, as  it  is  justly  held  by  them  to  be  the  only  one  which 
will  improve  existing  conditions,  enable  them  to  maintain 
their  positions  in  the  markets  of  China,  and  extend  their 
future  operations."" 

•Blue  Book  on  China,  No.  2   (1900),  No.   i.  Cf.  House  Doc.  cited 
above. 


332  THE    RUSSO-JAPANESE    WAR 

On  July  3,  1900,  during  the  crisis  caused  by  the  Boxer 
uprising,  Secretary  Hay  addressed  to  the  Powers  a  second 
Circular  Note  in  which  he  said :  "The  purpose  of  the  Pres- 
ident is,  as  it  has  been  heretofore,  to  act  concurrently  with 
the  other  Powers,  first,  in  opening  up  communication  with 
Peking  and  rescuing  American  officials,  missionaries,  and 
other  Americans  who  are  in  danger ;  secondly,  in  affording 
all  possible  protection  everywhere  in  China  to  American 
life  and  property;  thirdly,  in  guarding  and  protecting  all 
legitimate  American  interests ;  and  fourthly,  in  aiding  to 
prevent  a  spread  of  the  disorders  to  the  other  provinces  of 
the  Empire  and  a  recurrence  of  such  disasters.  It  is,  of 
course,  too  early  to  forecast  the  means  of  attaining  this  last 
result;  but  the  policy  of  the  Government  of  the  United 
States  is  to  seek  a  solution  which  may  bring  about  perma- 
nent safety  and  peace  in  China,  preserve  Chinese  territorial 
and  administrative  entity,^^  protect  all  rights  guaranteed  to 
friendly  Powers  by  treaty  and  International  Law,  and  safe- 
guard for  the  world  the  principle  of  equal  and  impartial 
trade  with  all  parts  of  the  Chinese  Empire."^^  This  note  met 
with  a  most  cordial  reception  on  the  part  of  the  Powers  to 
whom  it  was  addressed,  and  it  appears  to  have  been  a  po- 
tent factor  in  the  re-establishment  of  order  in  China  and  the 
restoration  of  peace  between  China  and  the  Powers. 

During  the  Boxer  uprising  of  1900,  as  also  during  the 
long  negotiations  which  followed,  all  the  Powers  interested 
in  the  fate  of  China  repeatedly  pledged  themselves  to  main- 
tain the  'open  door'  and  the  territorial  integrity  of  the  Chi- 
nese Empire.     The  latter  principle  was  especially  urged  by 

"  The  italics  are  the  author's. 

^^  House  Doc,  Foreign  Relations   (1900),  56th  Congress,  second  Ses- 
sion, pp.  299  fif. 


RELATIONS    OF    EN'GLAXD    AXU    THE    UNITED    STATES        333 

Russia,  but  was  at  the  same  time  being  violated  by  her  in 
Manchuria,  which  was  overrun  and  occupied  by  Russian 
troops. 

During  the  campaign  of  1900.  as  also  during  the  negotia- 
tions which  led  up  to  the  signing  of  the  Peace  Protocol  of 
September  7,  1901.  between  China  and  the  allied  Powers, 
the  relations  between  England.  Japan,  and  the  United 
States  were  particularly  close  and  they  appear,  in  the  main, 
to  have  acted  in  harmony.  ^^ 

The  support  of  the  United  States  and  Japan^^  aided  Great 
Britain  in  checking  the  aggressive  tendencies  of  Russian 
f)oIicy  in  northern  China  during  this  period,  and  this  assist- 
ance must  have  been  especially  gratifying  to  England  at  a 
time  when  she  was  engaged  in  her  great  struggle  with  the 
Boers  in  South  Africa.     For  had  England  been  compelled 

"So,  e.  g.,  in  July,  1900,  the  British  and  American  Admirals  voted 
against  the  proposal  to  give  Russia  the  control  of  the  railway  line  from 
Tongku  to  Tientsin,  which  the  Russians  had  seized  and  were  operating 
in  spite  of  the  fact  that  it  was  mortgaged  to  British  bondholders.  On 
the  strength  of  the  decision  of  the  Admirals,  the  Russians  claimed  the 
whole  railway  from  Taku  to  Peking.  Russian  and  British  troops  almost 
came  to  an  open  conflict  at  one  stage  of  this  dispute.  See  China,  No.  7 
(1901),  passim,  especially  No.  4.  The  United  States  was  particularly 
active  in  securing  a  reduction  of  the  amount  of  indemnity  imposed 
upon  China.  The  United  States  and  Great  Britain  both  strongly  opposed 
the  Russo-French  proposal  of  a  joint  guaranteed  loan.  See  China,  No. 
I   (1902),  passim,  especially  Nos.  136  and  173. 

On  the  other  hand,  the  United  States,  Russia  and  Japan  opposed  the 
extreme  demands  of  England  and  Germany  on  the  Chinese  Government 
in  the  matter  of  the  capital  punishment  of  Prince  Tuan,  Duke  Lan, 
and  Tung-fu  Hsiang.  See  China,  No.  6  (1901),  passim,  especially  Nos. 
55.  57.  67,  83,  119.  135,  141,  172,  193,  205  and  233. 

"  The  policy  of  Japan  appears  at  this  time  to  have  f)ecn  much  less 
aggressive  than  it  was  a  few  years  later.  Inasmuch  as  Japan  furnished 
more  than  her  proportion  of  troops  for  the  relief  of  the  Legations  at 
Peking  during  the  Boxer  uprising,  her  Government  asked  for  and  re- 
ceived financial  assistance  from  England.  See  China,  No.  3  (1900), 
Nos.  265  ff. 


334  THE    RUSSO-JAPANESE    WAR 

to  fight  the  battle  of  the  open  door  and  territorial  integrity 
of  China  alone  during  this  crisis  in  her  history,  she  must  in- 
evitably have  yielded  to  a  coalition  between  Russia,  France, 
and  Germany,  who  would  probably  have  siezed  this  favora- 
ble opportunity  to  continue  or  complete  the  process  of  dis- 
membering the  Chinese  Empire  which  they  had  so  success- 
fully begun  a  few  years  before.  In  that  case,  the  gates  of 
China  would  have  been  closed  to  the  rest  of  the  world  and 
the  greater  part,  at  least,  of  the  immense  potential  resources 
of  that  vast  country  and  its  teeming  population  must  have 
fallen  a  prey  to  the  systematic  commercial  exploitation  and 
exclusive  protective  systems  of  these  countries.^* 

In  February,  1901,  Japan,  Great  Britain,  and  the  United 
States  made  similar  representations  to  China  against  her 
signing  the  Alexieff-Tseng  Agreement  for  the  pacification 
of  Manchuria.  The  United  States,  e.  g.,  reminded  China  of 
the  "impropriety,  inexpediency,  and  even  extreme  danger 
to  the  interests  of  China,  of  considering  any  private  terri- 
torial and  financial  engagements,  at  least  without  the  full 
knowledge  and  approval  of  all  the  Powers  now  engaged  in 
negotiations."^^     In  reply  to  an  appeal  from  the  Emperor 

"On  March  15,  1901,  the  German  Chancellor  openly  declared  in  a 
speech  in  the  Reichstag  that  "there  were  no  German  interests  of  impor- 
tance in  Manchuria,"  and  that  "the  fate  of  that  province  was  a  matter 
of  absolute  indifference  to  Germany."  But  he  added  that  Germany  had 
informed  China  that  "she  would  deprecate  the  conclusion  at  the  present 
time  of  any  agreement  with  no  matter  which  Power,  which  would  im- 
pair China's  financial  resources."  Cited  by  McCarthy,  The  Coming 
Pozver,  p.  105.  Cf.  Scott  to  Lansdowne  in  China,  No.  6  (1901),  No.  211. 
Of  course,  Germany  would  have  demanded  concessions  elsewhere  in 
China  in  return  for  her  complaisance  toward  Russia  in  Manchuria.  The 
relations  between  Russia  and  France  during  this  period  are  too  well 
known  to  admit  of  any  doubt  as  to  the  attitude  of  France. 

"China,  No.  2  (1904),  No.  19.  See  also  Nos.  8  and  15  for  the  attitude 
of   Great   Britain   and  Japan.    Germany   also   made   representations   to 


RELATIONS    OF    ENGLAND    AND    THE    UNITED    STATES        335 

of  China,  Great  Britain  and  Japan  remonstrated  in  March, 
1901,  against  the  signing  of  the  drastic  Lamsdorff-Yang-yu 
Convention,  which  would  probably  have  resulted  in  the  com- 
plete Russianization  of  Manchuria. ^•' 

On  February  3,  1902,  Secretary  Hay  lodged  a  vigorous 
protest  against  the  terms  of  a  proposed  agreement  between 
Russia  and  China  according  to  which  the  Russo-Chinese 
Bank  was  to  be  given  a  practical  monopoly  of  all  railway 
and  mining  concessions  in  Manchuria.  It  is  highly  probable 
that  similar  protests  were  made  by  Great  Britain  and  Japan, 
but  no  reference  to  such  action  appears  in  the  published 
documents. ^^  There  can  be  no  doubt,  however,  that  Secre- 
tary Hay's  protest  was  in  accordance  with  the  views  of  these 
two  Powers.^*  He  reminded  the  Russian  and  Chinese  Gov- 
ernments of  the  repeated  assurances  given  by  Russia  of  her 
devotion  to  the  principle  of  the  "open  door"  in  China,  and 
said :  "The  Government  of  the  United  States  can  view 
only  with  concern  an  agreement  by  which  China  concedes 
to  a  corporation  the  exclusiv^e  right  to  open  mines,  construct 
railways,  or  other  industrial  privilege;  that  such  monopoly 
would  distinctly  contravene  treaties  of  China  with  foreign 
Powers,  affect  rights  of  citizens  of  the  United  States  by  re- 
China  on  this  occasion,  but  with  greater  reservation  and  in  somewhat 
different  language.    See  China,  op.  ctt.,  Nos.  12  and  13. 

"China,  No.  6  (1901).  Nos.  202  and  207.  See  also  China.  No.  2 
(1904),  Nos.  16,  21,  24,  28,  34,  etc.  The  United  States  does  not  seem 
to  have  remonstrated  on  this  occasion.  At  least  such  action  does  not 
appear  in  the  published  documents.  She  probably  considered  her  former 
representations  sufficient  for  the  purpose. 

"  Asakawa  (The  Russo-Japanese  Conflict,  p.  194)  calls  attention  to 
this  fact. 

"  The  attitude  of  the  British  Government  was  clearly  indicated  in  a 
conversation  between  Lord  Lansdowne  and  Mr.  Choate  on  February 
II,  1902.  See  Mr.  Choate  to  Mr.  Hay  in  House  Doc.  of  57th  Congress, 
2d  session  (For.  Rel.  1902-03),  pp.  511-12. 


33^  THE    RUSSO-JAPANESE    WAR 

stricting  rightful  trade,  and  tend  to  impair  the  sovereign 
rights  of  China  and  diminish  her  abiHty  to  meet  interna- 
tional obligations;  that  other  Powers  will  probably  seek 
similar  exclusive  advantages  in  other  parts  of  the  Chinese 
Empire,  which  would  wreck  the  policy  of  absolutely  equal 
treatment  of  all  nations  in  regard  to  navigation  and  com- 
merce in  the  Chinese  Empire;  and  that,  moreover,  for  one 
Power  to  acquire  exclusive  privileges  for  its  nationals  con- 
flicts with  assurances  repeatedly  given  to  the  Government 
of  the  United  States  by  the  Russian  ministry  for  foreign 
affairs  of  a  firm  intention  to  follow  the  policy  of  the  open 
door  in  China,  as  advocated  by  the  United  States  and  ac- 
cepted by  all  the  Powers  having  commercial  interests  in 
China."^" 

The  situation  in  the  Far  East  was  greatly  affected  by  the 
defensive  alliance  between  England  and  Japan,  signed  on 
January  30,  1902.  This  alliance  was  induced  by  the  dis- 
covery, as  the  result  of  frequent  interchanges  between  the 
two  Governments,  that  "their  Far  Eastern  policy  was  identi- 
cal," and  it  declared  for  the  open  door  and  the  territorial 
integrity  of  the  Chinese  Empire.^''  It  greatly  strengthened 
the  hands  of  both  Governments  in  dealing  with  China  and 
Russia,  and,  although  the  United  States  made  no  declara- 
tion to  that  effect, ^^  it  was  well  known  that  our  sympathies 

"Paraphrase  of  telegram  to  Mr.  Conger  on  February  11,  1902.  See 
House  Doc,  of  57th  Congress,  2d  session,  pp.  275-76.  Cf.  Ibid.,  pp. 
926-28. 

""Lord  Lansdowne  to  Sir  Claude  MacDonald,  The  British  Parlia- 
mentary Papers  for  Japan,  No.  i  (1902). 

"'  The  United  States  Government  officially  disclaimed  all  knowledge 
of  the  negotiations  between  Great  Britain  and  Japan  leading  up  to  the 
Anglo- Japanese  Agreement ;  but  in  a  memorandum,  dated  March  22, 
1902,  it  expressed  its  gratification  in  seeing  in  the  Russo-French  Declar- 
ation  of   March    16.   1902,  as  also  in   the   Anglo-Japanese   Agreement, 


RELATIONS    OF    ENGLAND    AND    THE    UNITED    STATES        337 

and   interests  were  also   ''identical"    with   those   of   Great 
Britain  and  Japan  in  the  Orient. 

This  Agreement  appears  to  have  had  the  desired  effect. 
On  April  8,  1902,  Russia  concluded  with  China  the  now 
famous  Convention  providing  for  the  gradual  evacuation  of 
the  whole  of  Manchuria  in  three  successive  withdrawals 
within  eighteen  months  after  the  date  of  agreement,  "pro- 
vided that  no  disturbances  arise  and  that  the  action  of  other 
Pozvcrs  place  no  obstacle"  in  the  way  of  such  withdrawal." 

After  a  very  incomplete  fulfillment  of  her  engagement  to 
withdraw  from  Manchuria,'^  Russia  made  seven  additional 
demands  upon  China  in  April,  1903.  as  a  condition  for  the 
completion  of  the  process  of  evacuation.  These  were  of  a 
highly  exclusive  nature,  and  included  stringent  measures 
for  closing  Manchuria  to  the  economic  enterprises  of  all 
foreigners  except  Russians  and  for  preventing  the  openmg 
of  new  treaty  ports  in  Manchuria  without  the  consent  of 
Russia.'*  These  demands  were  in  direct  opposition  to  the 
principle  of  the  ''open  door,"  and  their  publication  was  fol- 
lowed by  firm  representations  on  the  part  of  Japan.  Great 
Britain,  and  the  United  States." 

"renewed  confirmation  of  the  assurances  it  has  heretofore  received 
from  each  of  them  regarding  their  concurrence  with  the  views  which 
this  Government  has  from  the  outset  announced  and  advocated  in  re- 
spect to  the  conservation  of  the  independence  and  integrity  of  the 
Chinese  Empire  as  well  as  of  Korea,  and  the  maintenance  of  complete 
liberty  of  intercourse  between  those  countries  and  all  nations  in  matters 
of  trade  and  industry."  See  House  Doc,  57th  Congress,  2d  session, 
pp.  930-31. 

"The  italics  arc  the  author's.    For  the  French  text  and  English  trans- 
lation of  this  Convention,  see  Blue  Book  on  China,  No.  2  (1904).  Nos. 

54  and  51- 
"  See  Introduction,  supra,  pp.  33-34- 
**  For  these  demands,  see  supra,  pp.  34-35- 
"China,  No.  2  (1904),  Nos.  79  ff.    In  a  communication,  dated  .\pril 


33^  THE   RUSSO-JAPANESE    WAR 

An  important  step  in  the  direction  of  strengthening-  the 
"open  door"  policy  in  China  was  taken  by  the  United  States 
on  October  8,  1903 — the  date  which  had  been  set  for  the 
final  evacuation  of  Manchuria.  On  that  date  the  United 
States  concluded  a  commercial  treaty  with  China  which  se- 
cured the  opening  of  Mukden  and  Antung  in  Manchuria  to 
international  trade  and  settlement  in  spite  of  Russian  oppo- 
sition.^® 

It  was  in  strict  accordance  with  a  number  of  precedents 
that  Secretary  Hay  took  the  initiative  on  February  10, 
1904,  in  proclaiming  that  "the  neutrality  of  China  and  in 
all  practicable  ways  her  administrative  entity^^  should  be 
respected  by  Japan  and  Russia  during  the  Russo-Japanese 
War.  Although  this  proposal  was  said  to  have  been  made 
at  the  suggestion  of  Germany,  the  burden  of  enforcing  it 
against  Russia  would  undoubtedly  have  fallen  upon  Great 
Britain  and  the  United  States  had  such  action  become  nec- 

28,  1903,  to  Sir  Herbert,  Lord  Lansdowne  said  it  was  the  "desire 
and  intention"  of  the  British  Government  "to  act  in  accordance  with 
what  we  conceive  to  be  the  policy  of  the  United  States,  namely,  to 
open  China  impartially  to  the  commerce  of  the  whole  world,  to  main- 
tain her  independence  and  integrity,  and  to  insist  upon  the  fulfillment 
of  treaty  and  other  obligations  by  the  Chinese  Government  which  they 
have  contracted  towards  us."   Ibid.,  No.  90. 

^' On  the  same  day  (October  8,  1903)  a  commercial  treaty,  providing 
for  the  opening  to  the  world's  trade  of  Mukden  and  Tatung-Kao,  was 
concluded  between  China  and  Japan. 

The  attitude  of  Russia  towards  the  rights  and  privileges  of  foreigners 
in  Manchuria  may  be  inferred  from  Count  Benckendorfif's  admissions  to 
Lord  Landsdowne  on  July  11,  1903.  He  said  in  effect  that  the  "Imperial 
Government  (of  Russia)  have  no  intention  of  opposing  the  gradual 
opening  by  China,  as  commercial  relations  develop,  of  some  towns  in 
Manchuria  to  foreign  commerce,  excluding,  however,  the  right  to  estab- 
lish 'Settlements'."   China,  No.  2  (1904),  No.  133. 

^^ House  Doc.,  58th  Congress,  3d  session  (For.  Rel.  1904),  p.  2.  Cf. 
supra,  pp.  246-247. 


RELATIONS    OF    ENGLAND    AND    THE    UNITED    STATES       339 

essary.  While  the  attitude  of  the  Governments  of  both 
these  countries  towards  Russia  was  entirely  correct  during 
the  war — more  so,  in  fact,  than  was  the  conduct  of  France 
and  Germany  towards  Japan — nevertheless  the  sympathies 
and  good  wishes  of  the  people  of  the  United  States,  as  well 
as  those  of  England,  were  enlisted  on  the  side  of  Japan. 
Admiration  for  the  splendid  fighting  qualities  of  the  Jap- 
anese, a  fear  of  the  Russian  Advance,  a  feeling  that  Japan 
was  fighting  our  battle  in  the  Far  East,  were  sentiments 
common  to  the  people  of  both  countries.  The  Governments 
of  both  countries  made  similar  protests  against  the  Russian 
doctrine  of  contraband,  and  our  leading  newspapers  took 
the  English  side  in  every  important  controversy  which  arose 
between  Russia  and  Great  Britain,  as,  c.  g.,  in  respect  to  the 
seizure  of  the  Malacca,  the  sinking  of  the  Knight  Com- 
mander, and  the  North  Sea  Incident. 

Our  American  traditions  and  principles  forbid  our  be- 
coming a  party  to  the  recent  offensive  and  defensive  alli- 
ance between  England  and  Japan, ^**  but  our  sympathies  and 
interests  are  clearly  enlisted  on  the  side  of  that  partnership. 
There  exists  a  gradually  growing  conviction  that  the  inter- 
ests of  Great  Britain  and  the  United  States  in  the  Orient  are 
identical.  In  their  Far  Eastern  Policy  both  countries  have 
aimed  at  the  enlargement  of  commercial  opportunities  and 
the  expansion  of  trade  rather  than  at  territorial  aggrandize- 
ment or  political  control,  whereas  Russia,  France,  and  Ger- 
many appear  to  have  sought  after  "spheres  of  interest"  and 
"leases"  with  a  view  to  acquiring  special  economic  privi- 
leges or  commercial  monopolies  for  themselves.  All  that 
the  English  and  Americans  ask  for  is  a  fair  field  and  an 

"*  See  infra,  pp.  357-359- 


340  THE    RUSSO-JAPANESE    WAR 

equal  opportunity  to  enter  into  free  and  open  competition 
with  the  other  nations  of  the  world  for  the  markets  of  the 
East.  In  other  words,  the  United  States  and  England  stand 
together  in  demanding  a  "square  deal"  in  the  Orient. 


CHAPTER  XIII 

The  Treaty  of  Portsmouth 

The  Russo-Japanese  War  was  ended  by  a  treaty  negoti- 
ated at  Portsmouth,  N.  H.,  which  was  signed  September  5 
and  ratified  October  14,  1905.  The  terms  of  this  treaty  are 
as  follows : 

Article  I.  There  shall  henceforth  be  peace  and  amity  be- 
tween their  Majesties,  the  Emperor  of  Japan  and  the  Emperor 
of  All  the  Russias,  and  between  their  respective  states  and 
subjects. 

Art.  II.  The  Imperial  Russian  Government,  acknowledging 
that  Japan  possesses  in  Korea  paramount  political,  military,  and 
economical  interests,  engage  neither  to  obstruct  nor  interfere 
with  the  measures  of  guidance,  protection,  and  control  which 
the  Imperial  Government  of  Japan  may  find  it  necessary  to  take 
in  Korea. 

It  is  understood  that  Russian  subjects  in  Korea  shall  be 
treated  in  exactly  the  same  manner  as  the  subjects  and  citizens 
of  other  foreign  Powers ;  that  is  to  say,  they  shall  be  placed  on 
the  same  footing  as  the  subjects  and  citizens  of  the  most  fa- 
vored nation. 

It  is  also  agreed  that,  in  order  to  avoid  causes  of  misunder- 
standing, the  two  High  Contracting  Parties  will  abstain  on  the 
Russo-Korean  frontier  from  taking  any  military  measures 
which  may  menace  the  security  of  Russian  or  Korean  territory. 

Art.  III.    Japan  and  Russia  mutually  engage : 
(i)  to  evacuate  completely  and  simultaneously  Manchuria, 
except  the  territory  affected  by  the  lease  of  the  Liao-tung  Pen- 
insula in  conformity  with  the  provisions  of  the  additional  Arti- 
cle I  annexed  to  this  treaty  ;  and 


342  THE    RUSSO-JAPANESE    WAR 

(2)  to  restore  entirely  and  completely  to  the  exclusive  ad- 
ministration of  China  all  portions  of  Manchuria  now  in  occu- 
pation or  under  the  control  of  the  Japanese  or  Russian  troops, 
with  the  exception  of  the  territory  above  mentioned. 

The  Imperial  Government  of  Russia  declare  that  they  have 
not  in  Manchuria  any  territorial  advantages  or  preferential  or 
exclusive  concessions  in  the  impairment  of  Chinese  sovereignty 
or  inconsistent  with  the  principle  of  equal  opportunity. 

Art.  IV.  Japan  and  Russia  reciprocally  engage  not  to  ob- 
struct any  general  measures  common  to  all  countries  which 
China  may  take  for  the  development  of  the  commerce  or  in- 
dustry of  Manchuria. 

Art.  V.  The  Imperial  Russian  Government  transfer  and  as- 
sign to  the  Imperial  Government  of  Japan,  with  the  consent  of 
the  Government  of  China,  the  lease  of  Port  Arthur,  Ta-lien, 
and  the  adjacent  territory  and  territorial  waters,  and  all  rights, 
privileges,  and  concessions  connected  with  or  forming  part  of 
such  lease,  and  they  also  transfer  and  assign  to  the  Imperial 
Government  of  Japan  all  public  works  and  properties  in  the 
territory  affected  by  the  above-mentioned  lease. 

The  two  Contracting  Parties  mutually  engage  to  obtain  the 
consent  of  the  Chinese  Government  mentioned  in  the  foregoing 
stipulation.  The  Imperial  Government  of  Japan  on  their  part 
undertake  that  the  proprietary  rights  of  Russian  subjects  in 
the  territory  above  referred  to  shall  be  perfectly  respected. 

Art.  VI.  The  Imperial  Russian  Government  engage  to 
transfer  and  assign  to  the  Imperial  Government  of  Japan,  with- 
out compensation  and  with  the  consent  of  the  Chinese  Govern- 
ment, the  railroad  between  Chang-chun  (Kuan-chang-tsu)  and 
Port  Arthur,  and  all  its  branches,  together  with  all  rights,  privi- 
leges, and  properties  appertaining  thereto  in  that  region,  as  well 
as  all  coal  mines  in  said  region  belonging  to  or  worked  for 
the  benefit  of  the  railway.  The  two  High  Contracting  Parties 
mutually  engage  to  obtain  the  consent  of  the  Government  of 
China  mentioned  in  the  foregoing  stipulation. 

Art.  VII.  Japan  and  Russia  engage  to  exploit  their  respec- 
tive railways  in  Manchuria  exclusively  for  commercial  and  in- 


THE  TREATY  OF  PORTSMOUTH  343 

dustrial  purposes  and  in  nowise  for  strategic  purposes.  It  is 
understood  that  this  restriction  does  not  apply  to  the  railway  in 
the  territory  affected  by  the  lease  of  the  Liao-tung  Peninsula. 

Art.  VIII.  The  Imperial  Governments  of  Japan  and  Rus- 
sia, with  the  view  to  promote  and  facilitate  intercourse  and 
traffic,  will,  as  soon  as  possible,  conclude  a  separate  convention 
for  the  regulation  of  their  connecting  railway  services  in  Man- 
churia. 

Art.  IX.  The  Imperial  Russian  Government  cede  to  the  Im- 
perial Government  of  Japan  in  perpetuity  and  full  sovereignty 
the  southern  portion  of  the  Island  of  Sakhalin  and  all  islands 
adjacent  thereto  and  the  public  works  and  properties  thereon. 
The  fiftieth  degree  of  north  latitude  is  adopted  as  the  northern 
boundary  of  the  ceded  territory.  The  exact  alignment  of  such 
territory  shall  be  determined  in  accordance  with  the  provisions 
of  additional  Article  II  annexed  to  this  treaty. 

Japan  and  Russia  mutually  agree  not  to  construct  in  their 
respective  possessions  on  the  island  of  Sakhalin  or  the  adjacent 
islands  any  fortifications  or  other  similar  military  works.  They 
also  respectively  engage  not  to  take  any  military  measures 
which  may  impede  the  free  navigation  of  the  Straits  of  La 
Perouse  and  Tartary. 

Art.  X.  It  is  reserved  to  Russian  subjects,  inhabitants  of  the 
territory  ceded  to  Japan,  to  sell  their  real  property  and  retire 
to  their  country ;  but  if  they  prefer  to  remain  in  the  ceded  terri- 
tory they  will  be  maintained  and  protected  in  the  full  exercise 
of  their  industries  and  rights  of  property  on  condition  of  sub- 
mitting to  the  Japanese  laws  and  jurisdiction.  Japan  shall  have 
full  liberty  to  withdraw  the  right  of  residence  or  to  deport 
from  such  territory  any  inhabitants  who  labor  under  political 
or  administrative  disability.  She  engages,  however,  that  the 
proprietary  rights  of  such  inhabitants  shall  be  fully  respected. 

Art.  XI.  Russia  engages  to  arrange  with  Japan  for  grant- 
ing to  Japanese  subjects  rights  of  fishery  al<Mig  the  coasts  of  the 
Russian  possessions  in  the  Japan,  Okhotsk,  and  P)cring  Seas. 

It  is  agreed  that  the  foregoing  engagement  shall  not  affect 


344  THE   RUSSO-JAPANESE   WAR 

rights  already  belonging  to  Russian  or  foreign  subjects  in  those 
regions. 

Art.  XII.  The  treaty  of  commerce  and  navigation  between 
Japan  and  Russia  having  been  annulled  by  the  war,  the  Imperial 
Governments  of  Japan  and  Russia  engage  to  adopt  as  the  basis 
for  their  commercial  relations,  pending  the  conclusion  of  a  new 
treaty  of  commerce  and  navigation  on  the  basis  of  the  treaty 
which  was  in  force  previous  to  the  present  war,  the  system  of 
reciprocal  treatment  on  the  footing  of  the  most  favored  nation, 
in  which  are  included  import  and  export  duties,  customs  for- 
malities, transit  and  tonnage  dues,  and  the  admission  and  treat- 
ment of  agents,  subjects,  and  vessels  of  one  country  in  the  ter- 
ritories of  the  other. 

Art.  XIII.  As  soon  as  possible  after  the  present  treaty 
comes  into  force  all  prisoners  of  war  shall  be  reciprocally  re- 
stored. The  Imperial  Governments  of  Japan  and  Russia  shall 
each  appoint  a  special  commissioner  to  take  charge  of  the  pris- 
oners. All  prisoners  in  the  hands  of  one  Government  shall  be 
delivered  to  and  received  by  the  commissioner  of  the  other 
Government  or  by  his  duly  authorized  representative  in  such 
convenient  numbers  and  such  convenient  ports  of  the  deliver- 
ing state  as  such  delivering  state  shall  notify  in  advance  to  the 
commissioner  of  the  receiving  state. 

The  Governments  of  Japan  and  Russia  shall  present  to  each 
other,  as  soon  as  possible  after  the  delivery  of  prisoners  has 
been  completed,  a  statement  of  the  direct  expenditures  respec- 
tively incurred  by^  them  for  the  care  and  maintenance  of  the 
prisoners  from  the  date  of  capture  or  surrender  and  up  to  the 
time  of  death  or  delivery.  Russia  engages  to  repay  to  Japan,  as 
soon  as  possible  after  the  exchange  of  the  statements  as  above 
provided,  the  diflference  between  the  actual  amount  so  expended 
by  Japan  and  the  actual  amount  similarly  disbursed  by  Russia. 

Art.  XIV.  The  present  treaty  shall  be  ratified  by  their  Maj- 
esties, the  Emperor  of  Japan  and  the  Emperor  of  All  the  Rus- 
sias.  Such  ratification  shall,  with  as  little  delay  as  possible, 
and  in  any  case  not  later  than  fifty  days  from  the  date  of  the 
signature  of  the  treaty,  be  announced  to  the  Imperial  Govern- 


THE  TREATY  OF  PORTSMOUTH  345 

ments  of  Japan  and  Russia  respectively  through  the  French 
Minister  at  Tokio  and  the  Ambassador  of  the  United  States  at 
St.  Petersburg,  and  from  the  date  of  the  later  of  such  announce- 
ments this  treaty  shall  in  all  its  parts  come  into  full  force.  The 
formal  exchange  of  ratifications  shall  take  place  at  Washington 
as  soon  as  possible. 

Art.  XV.  The  present  treaty  shall  be  signed  in  duplicate  in 
both  the  English  and  French  languages.  The  texts  are  in  abso- 
lute conformity,  but  in  case  of  a  discrepancy  in  the  interpreta- 
tion the  French  text  shall  prevail. 

In  conformity  with  the  provisions  of  Articles  III  and  IX  of 
the  treaty  of  peace  between  Japan  and  Russia  of  this  date,  the 
undersigned  plenipotentiaries  have  concluded  the  following  ad- 
ditional Articles : 

Sub-Article  I  to  Article  III.  The  Imperial  Governments 
of  Japan  and  Russia  mutually  engage  to  commence  the  with- 
drawal of  their  military  forces  from  the  territory  of  Man- 
churia simultaneously  and  immediately  after  the  treaty  of 
peace  comes  into  operation ;  and  within  a  period  of  eighteen 
months  from  that  date  the  armies  of  the  two  countries  shall  be 
completely  withdrawn  from  Manchuria,  except  from  the  leased 
territory  of  the  Liao-tung  Peninsula.  The  forces  of  the  two 
countries  occupying  the  front  position  shall  be  first  withdrawn. 

The  High  Contracting  Parties  reserve  to  themselves  the  right 
to  maintain  guards  to  protect  their  respective  railway  lines  in 
Manchuria.  The  number  of  such  guards  shall  not  exceed  fifteen 
per  kilometer,  and  within  that  maximum  number  the  command- 
ers of  the  Japanese  and  Russian  armies  shall,  by  common  ac- 
cord, fix  the  number  of  such  guards  to  be  employed  as  small  as 
possible  while  having  in  view  the  actual  requirements. 

The  commanders  of  the  Japanese  and  Russian  forces  in  Man- 
churia shall  agree  upon  the  details  of  the  evacuation  in  con- 
formity with  the  above  principles,  and  shall  take  by  common 
accord  the  measures  necessary  to  carry  out  the  evacuation  as 
soon  as  possible,  and  in  any  case  not  later  than  the  period  of 
eighteen  months. 

Sub-Article  II  to  Article  IX.  As  soon  as  possible  after  the 


34^  THE    RUSSO-JAPANESE    WAR 

present  treaty  comes  into  force,  a  commission  of  delimitation, 
composed  of  an  equal  number  of  members  to  be  appointed,  re- 
spectively, by  the  two  High  Contracting  Parties,  shall  on  the 
spot  mark  in  a  permanent  manner  the  exact  boundary  between 
the  Japanese  and  Russian  possessions  on  the  island  of  Sakhalin. 
The  commission  shall  be  bound,  so  far  as  topographical  con- 
siderations permit,  to  follow  the  fiftieth  parallel  of  north  lati- 
tude as  the  boundary  line,  and  in  case  any  deflections  from  that 
line  at  any  points  are  found  to  be  necessary,  compensation  will 
be  made  by  correlative  deflections  at  other  points.  It  shall  also 
be  the  duty  of  said  commission  to  prepare  a  list  and  a  descrip- 
tion of  the  adjacent  islands  included  in  the  cession,  and,  finally, 
the  commission  shall  prepare  and  sign  maps  showing  the  boun- 
daries of  the  ceded  territory.  The  work  of  the  commission  shall 
be  subject  to  the  approval  of  the  High  Contracting  Parties. 

The  foregoing  additional  articles  are  to  be  considered  as  rati- 
fied with  the  ratification  of  the  treaty  of  peace  to  which  they 
are  annexed. 

Portsmouth,  the  fifth  day  of  the  ninth  month  of  the  thirty- 
eighth  year  of  Meiji,  corresponding  to  the  twenty-third  of 
August,  1905  (September  5,  1905). 

In  witness  whereof  the  respective  plenipotentiaries  have 
signed  and  afiixed  seals  to  the  present  treaty  of  peace. 

Done  at  Portsmouth,  New  Hampshire,  this  fifth  day  of  the 
ninth  month  of  the  thirty-eighth  year  of  the  Meiji,  correspond- 
ing to  the  twenty-third  day  of  August,  one  thousand  nine  hun- 
dred and  five.^ 

To  the  student  of  International  Law  and  Diplomacy,  this 
treaty  is  interesting  and  important  mainly  for  three  reasons  : 
in  the  first  place,  because  of  the  leading  part  played  by  Presi- 
dent Roosevelt  in  inaugurating  and  influencing  the  conduct 
of  negotiations ;  secondly,  because  of  the  controversy  with 
regard  to  the  question  of  indemnity;  and  thirdly,  because, 

*  Reprinted  from  the  London  Times  (weekly)  for  October  20,  1905, 
pp.  659-60. 


i 


THE  TREATY  OF  PORTSMOUTH  347 

taken  in  connection  with  the  Anglo-Japanese  offensive  and 
defensive  Alliance  signed  on  August  12,  1905,-  it  settled,  for 
a  time  at  least,  the  status  of  the  combatants  (and  incident- 
ally, too,  that  of  other  leading  nations  of  Europe  and  Amer- 
ica) in  the  Far  East. 

Article  3  of  the  First  Convention  or  Arbitration  Treaty 
of  the  Hague  Conference  provides :  "Independently  of  this 
recourse  {i.  c,  recourse  to  the  offices  or  mediation  of  friend- 
ly Powers  before  an  appeal  to  arms),^  the  Signatory  Powers 
consider  it  useful  that  one  or  more  Powers  who  are  stran- 
gers to  the  dispute  should,  on  their  own  initiative,  and  as 
far  as  circumstances  will  allow,  offer  their  good  offices  or 
mediation  to  the  states  at  variance.  The  right  to  offer  good 
offices  or  mediation  belongs  to  Powers  who  are  strangers 
to  the  dispute,  even  during  the  course  of  hostilities.  The 
exercise  of  this  right  shall  never  be  considered  by  one  or  the 
other  parties  to  the  contest  as  an  unfriendly  act."'* 

There  was  some  agitation  in  favor  of  peace  after  the  fall 
of  Port  Arthur  early  in  January,  and  again  after  the  great 
battle  of  Mukden  in  March,  but  it  was  not  until  after  the 
destruction  of  the  Baltic  Fleet  in  the  Korean  Straits,  on 
May  2^,  1905,  that  the  Russian  Government  appeared  to  be 
in  a  mood  favorable  to  the  consideration  of  terms  of  peace. 
Accordingly,  having  received  assurances  from  both  combat- 
ants that  his  overtures  would  be  well  received.  President 
Roosevelt,  acting  upon  the  recommendation  of  the  Hague 
Conference  above  cited,  took  the  initiative  and.  on  June  8. 

'  Infra,  pp.  357-359- 

'  See  Art.  2  of  the  Arbitration  Treaty. 

*  For  valuable  and  interesting  comments  upon  these  articles,  see  Holls, 
Peace  Conference,  pp.  176-185. 


34^  THE    RUSSO-JAPANESE    WAR 

1905,  sent  the  following  identical  note  to  the  Russian^  and 
Japanese  Governments : 

"The  President  feels  that  the  time  has  come  when,  in  the  in- 
terests of  all  mankind,  he  must  endeavor  to  see  if  it  is  not  pos- 
sible to  bring  to  an  end  the  terrible  and  lamentable  conflict  now 
being  waged. 

"With  both  Russia  and  Japan  the  United  States  had  inher- 
ited ties  of  friendship  and  goodwill.  It  hopes  for  the  prosperity 
and  welfare  of  each,  and  it  feels  that  the  progress  of  the  world 
is  set  back  by  the  war  between  these  two  great  nations. 

"The  President,  accordingly,  urges  the  Russian  and  Japanese 
Governments  not  only  for  their  own  sakes,  but  in  the  interest  of 
the  whole  civilized  world  to  open  direct  negotiations  for  peace 
with  one  another. 

"The  President  suggests  that  these  peace  negotiations  be  con- 
ducted directly  and  exclusively  between  the  belligerents ;  in 
other  words,  that  there  may  be  a  meeting  of  Russian  and  Japa- 
nese plenipotentiaries  or  delegates  without  any  intermediary,  in 
order  to  see  if  it  is  not  possible  for  these  representatives  of  the 
two  Powers  to  agree  to  terms  of  peace. 

"The  President  earnestly  asks  that  the  (Russian)  (Japanese) 
Government  do  now  agree  to  such  a  meeting  and  is  asking  the 
(Japanese)   (Russian)  Government  likewise  to  agree. 

"While  the  President  does  not  feel  that  any  intermediary 
should  be  called  in  in  respect  to  the  peace  negotiations  them- 
selves, he  is  entirely  willing  to  do  what  he  properly  can  if  the 
two  Powers  concerned  feel  that  his  services  will  be  of  aid  in  ar- 
ranging the  preliminaries  as  to  the  time  and  place  of  meeting. 
But  if  even  these  preliminaries  can  be  arranged  directly  be- 
tween the  two  Powers,  or  in  any  other  way,  the  President  will 
be  glad,  as  his  sole  purpose  is  to  bring  about  a  meeting  which 
the  whole  civiHzed  world  will  pray  may  result  in  peace." 

"  The  action  of  President  Roosevelt  is  said  to  have  been  supported 
by  the  German  Emperor  who,  it  was  semi-officially  stated,  made  inde- 
pendent representation  to  the  Czar.  See  Berlin  dispatch  of  June  13  to 
the  London  Times. 


THE  TREATY  OF  PORTSMOUTH  349 

Favorable  replies''  were  received  from  both  belligerents, 
but  considerable  difficulty  was  experienced  in  deciding  upon 
a  place  of  meeting.  Russia  appears  to  have  suggested  Paris 
as  a  suitable  place  for  the  negotiations  and  Japan  proposed 
Che-Foo.''  In  accordance  with  the  preference  of  Japan,  the 
United  States  was  finally  selected  as  the  place  of  meeting 
during  the  first  ten  days  of  August,  1905.**  Washington 
seems  to  have  been  the  first  choice,  but  this  was  later  changed 
to  Portsmouth,  N.  H.,  as  a  more  suitable  location  during  the 
hot  season. 

As  peace  plenipotentiaries  Russia  selected  two  of  her  most 
eminent  statesmen — the  famous  financier,  M.  Witte.®  and 
the  experienced  diplomatist,  Baron  Rosen,  who  had  repre- 
sented Russia  at  the  court  of  Tokio  at  the  outbreak  of  the 
war.  Japan  also  sent  two  of  her  most  eminent  statesmen — 
the  Foreign  Minister,  Baron  Komura,  and  Mr.  Takahira, 
Japan's  able  representative  at  Washington. 

The  Portsmouth  Peace  Conference  held  its  first  session, 
w^hich  was  wholly  devoted  to  civilities  and  formalities,  on 

"  For  these  replies,  see  London  Times  (weekly)  for  June  16,  1905,  p. 
371.  The  reply  of  Russia  was  characteristically  Russian.  It  declared 
that  the  "Imperial  Government  (of  Russia)  would  have  no  objection 
in  principle  to  such  an  attempt  if  the  Japanese  Government  expressed  a 
desire  for  it." 

^The  Hague  was  also  suggested,  but  this  proved  unacceptable  to 
Japan. 

'  China  is  said  to  have  given  notice  that  she  would  not  recognize  any 
arrangement  which  might  be  made  regarding  Chinese  interests  in  Man- 
churia unless  she  was  represented  at  the  conference. 

•The  experienced  diplomatist  Nediloff  and  the  Minister  of  Justice 
MuraviefF  were  at  first  selected  in  M.  Witte's  place.  Both  of  these  gen- 
tlemen were  excused  on  the  diplomatic  ground  of  ill-health.  The  emi- 
nent Russian  publicist,  De  Martens,  together  with  a  number  of  other 
experts,  accompanied  the  Russian  plenipotentiaries  to  Portsmouth.  The 
Japanese  were  similarly  accompanied  by  a  number  of  experts  and  spe- 
cialists. 


350  THE    RUSSO-JAPANESE    WAR 

August  9.  From  the  outset,  it  was  generally  held  by  those 
who  were  apparently  best  informed,  that  the  conference  was 
foredoomed  to  failure.^"  The  language  question  was  set- 
tled by  an  agreement  that  English,  French,  or  any  other  lan- 
guage might  be  spoken,  each  envoy  using  the  language 
he  preferred.  The  protocols,  it  was  agreed,  were  to  be 
drawn  in  both  French  and  English,  the  French  text,  how- 
ever, to  be  regarded  as  official  or  decisive  in  case  of  a  ques- 
tion of  interpretation.^^ 

The  twelve  Japanese  conditions  of  peace  were  handed  to 
the  Russian  envoys  at  the  second  session  of  the  Peace  Con- 
ference on  August  10.  As  a  result  of  the  insistence  of  the 
Japanese,  who  maintained  throughout  the  conference  an  at- 
titude of  uncompromising  opposition  to  publicity  in  any 
form,  the  Russians  agreed,  albeit  reluctantly,  that  all  dis- 
cussions and  proceedings  were  to  remain  secret.  Neverthe- 
less, the  Japanese  terms  gradually  leaked  out.^^ 

These  twelve  Japanese  demands  appear  to  have  been  sub- 
stantially as  follows : 

(i)  The  recognition  by  Russia  of  Japan's  paramount  inter- 
ests in  Korea. 

(2)  An  engagement  on  the  part  of  Russia  to  completely 
evacuate  Manchuria  and  to  relinquish  all  territorial  advantages 
and  all  preferential  and  exclusive  concessions  and  franchises 
in  that  region  which  tended  to  impair  Chinese  sovereignty  or 
were  inconsistent  with  the  principle  of  equal  opportunity. 

(3)  An  engagement  on  the  part  of  Japan  to  restore  to  China 
all  those  portions  of  Manchuria  which  she  had  occupied,  with 

"  See,  e.  g.,  the  repeated  predictions  of  failure  made  by  Dr.  Morrison, 
the  famous  correspondent  of  the  London  Times. 
"  See  London  Times  for  August  10,  1905. 
"  For  this  "leakage,"  M.  Witte  was  generally  held  responsible. 


THE    TREATY    OF    PORTSMOUTH  35 1 

the  exception  of  the  regions  affected  by  the  lease  of  the  Liao- 
tung  Peninsula. 

(4)  A  mutual  engagement  on  the  part  of  Japan  and  Russia 
not  to  obstruct  any  general  measures  (i.  e.,  common  to  all 
countries)  which  China  may  take  for  the  development  of  the 
commerce  and  industries  of  ]\Ianchuria. 

(5)  The  cession  of  Sakhalin  to  Japan. 

(6)  The  transfer  to  Japan  of  the  Russian  leases  of  the  Liao- 
tung  Peninsula,  including  Port  Arthur  and  Talien  (Dalny). 

(7)  The  transfer  to  Japan  of  that  portion  of  the  Southern 
Manchurian  Railway  (together  with  its  branches)  connecting 
Harbin  with  Port  Arthur,  and  of  all  coal  mines  appertaining 
thereto. 

(8)  The  retention  by  Russia  of  the  main  line  or  latitudinal 
section  of  the  Chinese  Eastern  or  Trans-Manchurian  railway, 
on  condition  that  it  be  employed  exclusively  for  commercial 
and  industrial  purposes. 

(9)  The  demand  for  a  war  indemnity,  or  rather  reimburse- 
ment for  the  costs  of  the  war.  The  amount  was  not  stated, 
but  the  costs  of  the  war  were  variously  estimated  at  from 
$500,000,000  to  $1,000,000,000. 

(10)  The  surrender  to  Japan  of  all  Russian  warships  in- 
terned in  neutral  ports  during  the  war. 

(11)  The  limitation  of  Russia's  naval  forces  in  the  Far 
East. 

(12)  The  grant  to  Japanese  subjects  of  certain  fishing  rights 
on  the  Siberian  coast.  ^^ 

Of  these  twelve  demands,  four  (Arts.  5.  9,  10.  11)  were 
positively  rejected  in  the  Russian  reply,  viz. — the  cession 
of  Sakhalin,  the  payment  of  a  war  indemnity,  the  surrender 
to  Japan  of  the  Russian  warships  interned  in  neutral  p>orts, 
and  the  limitation  of  Russia's  naval  forces  in  the  Far  East. 

"  For  the  text  of  these  demands,  see  two  articles  by  Dr.  E.  G.  Dillon 
entitled  "The  Official  Narrative  of  the  Peace  Conference"  and  "The 
Story  of  the  Peace  Negotiations"  in  Harper's  Weekly  for  September 
16,  1905,  and  Contemporary  Reviciv  for  October,  1905,  respectively. 


352  THE    RUSSO-JAPANESE    WAR 

Upon  Baron  Komura's  suggestion,  the  Japanese  conditions 
were  considered  seriatim,  but  it  was  soon  learned  that  the 
Russians  were  firm  in  refusing  these  four  demands.  They 
seem  to  have  been  wilhng  to  yield  or  compromise  on  every 
point  which  might  be  regarded  as  a  casus  belli,  but  to  have 
been  unalterably  opposed  to  further  concessions. 

As  to  Sakhalin,  the  Japanese  rightly  argued  that  they 
were  in  actual  possession,  and  that,  considering  the  fortunes 
of  the  war  and  the  fact  that  the  island  formerly  belonged  to 
Japan,  the  rule  of  uti  possidetis  ought  to  prevail.  The  Rus- 
sians, on  the  other  hand,  maintained  that  the  cession  of  this 
"sentinel  at  our  gate"  to  Japan  would  transform  not  only  the 
Sea  of  Japan  into  a  Japanese  lake,  but  the  Sea  of  Okhotsk 
as  well.  The  retention  of  this  island,  they  maintained,  was 
of  great  defensive  value  to  Siberia.  In  respect  to  the  de- 
livery of  the  interned  Russian  warships,  the  Russians  cor- 
rectly maintained  that  this  was  contrary  to  international 
precedent.^*  As  to  the  limitation  of  their  naval  forces  in  the 
Far  East,  the  Russians  rightly  held  that  such  a  concession 
would  be  humiliating  for  them^^  and  derogatory  to  their 
honor  and  dignity.  The  utmost  that  M.  Witte  would  con- 
cede on  this  point  was  a  formal  declaration  to  the  effect  that 
Russia  had  no  present  intention  of  increasing  her  fleet  in 
Eastern  waters.    As  to  remuneration  for  the  cost  of  the  war, 

"  The  Russians  are  represented  as  having  said,  "contrary  to  Interna- 
tional Law,"  but  they  must  have  meant  "international  usage"  or  "prece- 
dent." Of  course,  there  is  no  principle  in  International  Law  which 
would  have  forbidden  such  a  transfer.  But  it  has  not  been  customary 
to  exact  such  delivery. 

"  It  is  well  known  that  Russia  had  been  forced  to  make  such  a  con- 
cession in  respect  to  warships  on  the  Black  Sea  at  the  close  of  the 
Crimean  War  in  1856,  but  she  had  taken  the  first  good  opportunity 
which  presented  itself  (in  1870)  to  remove  this  restriction  upon  her 
freedom  of  movement. 


THE  TREATY  OF  PORTSMOUTH  353 

M.  Witte  is  reported  to  have  said :  "We  will  pay  you  what 
you  have  expended  to  do  us  good,  all  your  outlays  for  the 
maintenance  of  prisoners  and  any  expense  in  that  nature 
which  you  will  define  to  us.  We  will  pay  it  gladly,  liberally, 
and  without  question.  But  for  what  you  have  spent  to  do  us 
evil — not  a  copeck."^^ 

It  soon  became  apparent  that  the  Japanese  were  not  par- 
ticularly bent  on  Articles  lo  and  ii,  but  that  they  were  de- 
termined to  secure,  if  possible,  the  cession  of  Sakhalin  and 
a  large  war  indemnity. ^^  The  Russians,  on  the  other  hand, 
absolutely  refused  to  concede  these  demands.  The  confer- 
ence seems  to  have  been  on  the  point  of  breaking  up  when 
President  Roosevelt  stepped  into  the  breach  and,  on  the 
night  of  August  18-19,  sent  for  one  of  the  Russian  pleni- 
potentiaries to  call  upon  him  at  his  summer  residence  at 
Oyster  Bay.  What  transpired  at  the  interview  between  him 
and  Baron  Rosen  on  the  following  day  (August  19)  is  un- 
known ;^^  but  it  subsequently  developed  that  the  Japanese 

"London  Times  (weekly)  for  August  25.  1905,  p.  530.  This  phrase — 
"not  a  copeck" — appears  to  have  been  a  favorite  one  of  M.  Witte's,  and 
was  repeated  again  and  again  during  the  course  of  negotiations. 

"  No  amount  was  stated.  The  attempt  was  merely  made  to  establish 
the  principle  of  remuneration. 

"  According  to  an  Associated  Press  report,  President  Roosevelt's  pro- 
posal, whatever  it  was,  was  based  upon  the  principles  of  arbitration, 
but  this  was  emphatically  denied  by  the  correspondent  of  the  London 
Times,  who  maintained  that  the  President's  object  in  sending  for  Baron 
Rosen  was  simply  to  procure  information.  The  President  is  said  merely 
to  have  suggested,  incidentally,  as  it  were,  that  "it  might  be  possible  to 
form  a  commission  of  competent,  disinterested  men  to  examine  the 
question  of  indemnity."  See  Cable  to  the  London  Times  for  August 
21,  1905.  Dr.  Dillon  (see  article  in  Contemporary  Rez'iew,  op.  cit.)  as- 
serted, on  the  other  hand,  that  President  Roosevelt  proposed  the  cession 
of  the  whole  island  of  Sakhalin  to  Japan  and  the  purchase  by  Russia  of 
the  northern  half  for  a  sum  to  be  fixed  by  three  arbitrators.  Professor 
de   Martens    (see  article   in   North  American   Review   for   November, 


354  THE    RUSSO-JAPANESE    WAR 

were  willing  to  waive  Articles  9,  lo  and  1 1  of  their  demands, 
and  to  sell  the  northern  half  of  Sakhalin  to  Russia  in  con- 
sideration of  a  large  sum  of  money/'*  The  Russians  main- 
tained, however,  that  this  was  simply  the  old  proposal  for 
indemnity  in  a  new  form,  and  remained  firm  in  their  refusal 
to  pay  a  copeck  of  tribute.  The  utmost  the  Czar,  in  response 
to  an  appeal  from  President  Roosevelt,^''  would  concede 
was  the  division  of  the  island  of  Sakhalin  between  Japan  and 
Russia. 

After  August  18  the  conference  almost  ceased  to  meet,^^ 
and  an  attempt  was  made  to  conduct  negotiations  between 
Tokio  and  St.  Petersburg  with  President  Roosevelt  as  in- 
termediary. Having  made  several  vain  appeals  to  the  Rus- 
sian Czar,  who  remained  firm  (except  for  his  willingness  to 
cede  the  southern  part  of  Sakhalin  to  Japan),  the  President 
turned  to  Tokio, ^"  where  the  influence  of  the  "elder  states- 

1905),  who  erroneously  refers  to  the  President's  action  as  an  "inter- 
vention," says  that  he  at  first  proposed  that  a  commission  composed  of 
neutrals  be  selected  to  fix  the  amount  of  the  sum  that  Russia  should 
pay  Japan.  Their  decision  was,  however,  not  to  be  binding  upon  the 
contending  parties. 

"  The  sum  named  was  $600,000,000.  This  Japanese  proposal  was,  ac- 
cording to  the  London  Times  correspondent,  erroneously  attributed  to 
President  Roosevelt  by  the  American  Press ;  but  Dr.  Dillon  insists  that 
it  was  inspired  by  the  President. 

^"According  to  Dr.  Dillon,  this  appeal  was  made  through  a  telegram 
which  President  Roosevelt  asked  M.  Witte  to  forward  to  the  Czar; 
according  to  W.  T.  Stead  (see  Am.  Review  of  Reviews  for  October, 
1905),  Ambassador  Meyer  is  entitled  to  the  credit  of  having  persuaded 
the  Czar  to  change  his  mind  and  agree  to  cede  the  southern  half  of 
Sakhalin. 

^  There  were  only  two  sessions  of  the  conference  between  Friday, 
August  18,  and  Tuesday,  August  29,  viz.,  the  brief  sessions  of  August 
2^  and  26,  at  which  the  Japanese  proposal  above  referred  to  was  made 
and  rejected. 

"  Prior    to    this    time    the    President    held    frequent    interviews    with 


J 


THE    TREATY    OF    PORTSMOUTH  355 

men"  and  possibly  that  of  Great  Britain  (which  had  just 
concluded  an  offensive  and  defensive  alliance  with  Japan) 
finally  prevailed  with  the  Mikado  in  favor  of  peace. 

It  was  generally  believed  that  President  Roosevelt  had 
failed  at  Tokio  as  well  as  at  St.  Petersburg  when  the  Ports- 
mouth Peace  Conference  met  for  what  was  thought  to  be  its 
last  session  on  the  morning  of  August  28.  To  the  surprise 
and  amazement  of  the  Russians  themselves,  Baron  Komura, 
acting  on  instructions  from  Tokio,  gave  the  sanction  of  the 
Japanese  envoys  to  the  division  of  the  island  of  Sakhalin 
between  Japan  and  Russia  and  w'ithdrew  all  demand  for  in- 
demnity. Thus  the  only  obstacles  to  an  agreement  had  been 
removed  and  one  of  the  greatest  w-ars  in  history  was  vir- 
tually at  an  end. 

At  first  sight  it  seemed  to  the  Japanese  and  their  friends^' 
that  those  who  had  conquered  in  warfare  had  been  outwitted 
and  outgeneraled  in  diplomacy.  It  was  said  that  all  the 
points  of  disagreement  between  the  negotiators  had  gradu- 
ally been  reduced  to  that  of  indemnity,  and  that  the  Japanese 
had  been  made  to  appear  before  the  world  as  though  they 
were  willing  to  w^age  war  for  money. 

There  is  doubtless  a  certain  amount  of  justification  for 
this  point  of  view,  but  it  may  be  said,  on  the  other  hand, 
that  Japan  secured  at  Portsmouth  all  and  even  more  than 
she  had  demanded  from  Russia  prior  to  the  outbreak  of  the 
war.  She  not  only  obtained  the  recognition  of  her  para- 
mount interests  in  Korea,  a  promise  to  evacuate  Manchuria 
within  eighteen  months,  a  recognition  of  the  principles  of 

Baron  Kaneko,  who  was  described  in  the  newspapers  as  the  "financial" 
or  "unofiiciar'  representative  of  the  Japanese  Government. 

"For  expressions  of  dissatisfaction  with  the  treaty,  see,  e.  g.,  Pro- 
fessors Reinsch  and  Seaman  in  the  Outlook  for  September  16,  1905. 


35^  THE    RUSSO-JAPANESE    WAR 

the  territorial  sovereignty  of  China  and  equal  opportunity 
of  all  nations  in  Manchuria,  and  the  transfer  of  the  Liao- 
tung  Peninsula  to  herself;  but  she  also  obtained  possession 
of  the  southern  branch  of  the  Chinese  Eastern  or  Trans- 
Manchurian  railway  from  Port  iVrthur  and  Niu-Chwang  to 
Kuan-chang-tsu  (which  runs  through  the  richest  of  the 
three  Manchurian  provinces)  and  the  cession  of  the  south- 
ern half  of  the  large  island  of  Sakhalin,  in  addition  to  valu- 
able rights  of  fishing  on  the  Siberian  coast. 

By  the  Convention  of  November  17,  1905,"*  the  inde- 
pendence of  Korea  was  formally  extinguished  and  the  man- 
agement of  Korean  foreign  affairs  was  placed  under  the  pro- 
tection and  control  of  Japan.  The  evacuation  of  Manchuria 
by  Russia  and  Japan  will,  if  executed  in  good  faith  by  both 
parties,  secure  to  the  commerce  and  industry  of  all  nations 
a  neutral  zone  between  Korea  and  China  on  one  side  and 
Siberia  on  the  other,  which  should  tend  to  prevent  friction 
and  preserve  peace  for  many  years.  But,  above  all,  the  Rus- 
sian Advance  in  the  Far  East — that  great  and  growing  dan- 
ger which  menaced  the  very  life  of  Japan — was  checked. ^^ 
From  her  citadel  at  Port  Arthur,  the  Gibraltar  of  the  Gulf 
of  Pe-chi-li,  Japan  can  now  command  the  entrance  to  Peking 
and  play  a  leading  part  in  the  reorganization  of  the  Chinese 
Empire. 

There  was  one  factor  in  the  situation  at  Portsmouth  of 
which  the  public  was  ignorant  at  the  time  and  whose  im- 
portance in  inducing  peace  it  is  even  now  impossible  to  esti- 

**  See,  supra,  note  on  p.  75. 

^  It  is  well  to  remember,  however,  that  the  Russian  Advance  in  the 
Far  East  was  merely  checked,  and  that  the  power  of  Russia  was  not  de- 
stroyed. She  remains,  commercially  speaking,  in  possession  of  the  two 
largest  provinces  of  Manchuria,  and  her  position  there  is  infinitely 
stronger  than  it  was  before  its  occupation. 


THE    TREATY    OF    PORTSMOUTH 


357 


mate.  It  was  not  until  several  weeks  after  the  Treaty  of 
Portsmouth  had  been  signed  that  it  became  known  that  on 
August  12,  1905,  during  the  progress  of  negotiations,  an 
offensive  and  defensive  alliance  had  been  concluded  between 
England  and  Japan.  The  text  of  this  alliance,  so  important 
in  the  future  history  of  international  relations,  is  as  follows : 

Preamble. — The  Governments  of  Great  Britain  and  Japan, 
being  desirous  of  replacing  the  agreement  concluded  between 
them  on  January  30,  1902,-**  by  fresh  stipulations,  have  agreed 
upon  the  following  articles,  which  have  for  their  object: 

(a)  the  consolidation  and  maintenance  of  general  peace  in  the 
regions  of  eastern  Asia  and  India ; 

(b)  the  preservation  of  the  common  interests  of  all  Powers 
in  China  by  insuring  the  independence  and  integrity  of  the 
Chinese  Empire  and  the  principle  of  equal  opportunities  for 
the  commerce  and  industry  of  all  nations  in  China ; 

(c)  the  maintenance  of  the  territorial  rights  of  the  High 
Contracting  Parties  in  the  regions  of  eastern  Asia  and  of  India, 
and  the  defense  of  their  special  interests  in  the  said  regions. 

Article  I.  It  is  agreed  that  whenever,  in  the  opinion  of 
either  Great  Britain  or  Japan,  any  of  the  rights  and  interests 
referred  to  in  the  preamble  of  this  Agreement  are  in  jeopardy, 
the  two  Governments  will  communicate  with  one  another  fully 
and  frankly,  and  consider  in  common  the  measures  which 
should  be  taken  to  safeguard  those  menaced  rights  or  interests. 

Art.  II.  If,  by  reason  of  an  unprovoked  attack  or  aggres- 
sive action,  wherever  arising,  on  the  part  of  any  other  Power 
or  Powers,  either  Contracting  Party  should  be  involved  in  war 
in  defense  of  its  territorial  rights  or  special  interests  mentioned 
in  the  preamble  of  this  Agreement,  the  other  Contracting  Party 
will  at  once  come  to  the  assistance  of  its  ally,  and  will  conduct 
war  in  common,  and  make  peace  in  mutual  agreement  with  it. 

Art.    III.    Japan   possessing   paramount   political,    military 

*■  For  the  text  of  this  alliance,  see  suf^ra,  pp.  26-27. 


358  THE    RUSSO-JAPANESE    WAR 

and  economic  interests  in  Korea,  Great  Britain  recognizes  the 
right  of  Japan  to  take  such  measures  of  guidance,  control  and 
protection  in  Korea  as  she  may  deem  proper  and  necessary  to 
safeguard  and  advance  those  interests,  provided  always  that 
such  measures  are  not  contrary  to  the  principle  of  equal  oppor- 
tunities for  the  commerce  and  industry  of  all  nations. 

Art.  IV.  Great  Britain  having  a  special  interest  in  all  that 
concerns  the  security  of  the  Indian  frontier,  Japan  recognizes 
her  right  to  take  such  measures  in  the  proximity  of  that  frontier 
as  she  may  find  necessary  for  safeguarding  her  Indian  posses- 
sions. 

Art.  V.  The  High  Contracting  Parties  agree  that  neither  of 
them  will,  without  consulting  the  other,  enter  into  separate  ar- 
rangements with  another  Power  to  the  prejudice  of  the  objects 
described  in  the  preamble  of  this  Agreement. 

Art.  VI.  As  regards  the  present  war  between  Japan  and 
Russia,  Great  Britain  will  continue  to  maintain  strict  neutrality 
unless  some  other  Power  or  Powers  should  join  in  hostilities 
against  Japan,  in  v/hich  case  Great  Britain  will  come  to  the  as- 
sistance of  Japan,  will  conduct  war  in  common,  and  will  make 
peace  in  mutual  agreement  with  Japan. 

Art.  VII.  The  conditions  under  which  armed  assistance 
shall  be  afforded  by  either  Power  to  the  other  in  the  circum- 
stances mentioned  in  the  present  Agreement,  and  the  means  by 
which  such  assistance  is  to  be  made  available,  will  be  arranged 
by  the  naval  and  military  authorities  of  the  Contracting  Parties, 
who  from  time  to  time  will  consult  one  another  fully  and  freely 
upon  all  questions  of  mutual  interest. 

Art.  VIII.  The  present  Agreement  shall,  subject  to  the  pro- 
visions of  Article  VI,  come  into  eft'ect  immediately  after  the 
date  of  signature  and  remain  in  force  for  ten  years  from  that 
date.  In  case  neither  of  the  High  Contracting  Parties  shall 
have  been  notified  twelve  months  before  the  expiration  of  the 
said  ten  years  of  the  intention  of  terminating  the  Agreement,  it 
shall  remain  binding  until  the  expiration  of  one  year  from  the 
day  on  which  either  of  the  High  Contracting  Parties  shall  have 
denounced  it ;  but  if,  when  the  date  fixed  for  its  expiration  ar- 


THE  TREATY  OF  PORTSMOUTH  359 

rives,  either  ally  is  actually  engaged  in  war,  the  alliance,  ipso 
facto  J  shall  continue  until  peace  is  concluded.-^ 

It  will  be  seen  that  this  treaty,  the  objects  of  which  are 
clearly  set  forth  in  the  preamble,  provides  for  common  ac- 
tion in  case  the  interests  of  either  Power  in  the  Far  East 
are  threatened  by  "an  unprovoked  attack  or  aggressive  ac- 
tion." These  interests  are  of  two  sorts — general  and  special. 
The  general  interests  are  the  maintenance  of  peace,  the  pres- 
ervation of  the  independence  and  territorial  integrity  of  the 
Chinese  Empire,  and  the  retention  of  the  "open  door"  in 
China.  The  special  interests  are  those  of  England  in  India 
and  of  Japan  in  Korea.  These  interests,  whether  general  or 
special,  have  never  been  seriously  threatened  by  any  Power 
or  Powers,  except  by  Russia,  and,  in  a  lesser  degree,  by 
Germany  and  France.  Considering  the  weakened  condition 
of  Russia  as  a  result  of  war  and  revolution,  it  would  seem 
that  the  Anglo-Japanese  Alliance,  especially  if  it  receive  the 
moral  support  of  the  Government  and  people  of  the  United 
States,  ought  to  insure  peace  and  the  status  quo  in  the  Far 
East  for  many  years  to  come. 

^  For  the  text  of  this  agreement,  as  also  an  explanatory  dispatch 
from  Lord  Lansdowne  to  Sir  Charles  Hardinge,  see  London  Times 
(weekly)  for  September  29,  1905,  p.  613.  Lord  Lansdowne  calls  special 
attention  to  Articles  TI  and  III  and  lays  stress  upon  the  purely  peace- 
ful and  defensive  character  of  the  agreement.  The  treaty,  although 
signed  on  August  12,  was  not  published  before  September  27,  1905. 


INDEX 


Administrative  entity  of  China, 
246  and  n.,  332,  338. 

Admiralty  Court  at  St.  Peters- 
burg, upholds  decision  in  cases 
of  the  Cheltenham,  173  n.,  and 
the  Calchas,  178;  reverses  deci- 
sion in  case  of  the  Arabia,  177; 
declares  cotton  contraband,   178. 

Agreements    (see    also    Alliances, 
Conventions,  and  Treaties)  : 
AlexiefiF-Tseng     (1900),     18-19, 

334- 
Anglo-German  (1900),  329. 
Anglo-Russian   (1899),  31,  328- 

329- 

Modus  vivendi  relating  to  Man- 
churia (1900),  19-20. 
Russo-Chinese  Bank  (1896),  13- 

14.  335- 

Alabama,  case  of  the,  yy  n.,  97, 
108-109  and  n.,  112-113,  325. 
(See  also  Geneva  Azvard.) 

Aldebaren,  the,  fired  upon,  218  n., 
223  n.,  238  n. 

Alexandra,  case  of  the,  104  and  n. 

Alexieff,  Admiral,  55,  56  n.,  136  n., 
260  n. ;  appointed  Viceroy,  57; 
policy  of,  57 ;  advice  to  the  Czar, 
60  n. ;  order  of,  to  treat  war 
correspondents  as  spies,  11 5-1 16 
n.,  119;  his  Manchurian  procla- 
mation, 251-254;  enlists  convicts, 
309;  report  of,  311  n. ;  accuses 
Japanese  of  using  lyddite  shells, 
316. 

AlexiefF-Tseng  Agreement,  334; 
terms  of,  18-19. 

Allanton,  case  of  the,  138,  171-172, 
173  n. 

Alliances : 

Anglo-Japanese     (1902),    26-29, 

Anglo- Japanese  (1905),  339,  347, 
357-359- 

Russo-Chinese  (1896).  12-T3  n. 
Ambulances,  field,  neutralized,  273. 
American     Civil     War,     questions 

arising    during,    154    n.,    175    n., 


190,  198  and  n.,  210  n.,  213  n., 
262,  325. 

Ancipitis  usiis,  160,  161,  n.,  166, 
169,  201. 

Anglo-German  Agreement  (1900), 
329- 

Anglo-Japanese  Alliance  (1902), 
text  of,  26-27 ;  Lord  Lansdowne 
on,  27-28 ;  declaration  regarding, 
28-29;  attitude  of  Russian  Gov- 
ernment toward,  29  n. ;  effect  of, 
2)2>^2i2i7 ',  sympathy  of  United 
States  with,  339. 

Anglo- Japanese  Alliance  (1905), 
347;  objects  of,  357,  359;  text  of, 
357-359;  importance  and  results 
of,  356,  359- 

Anglo- Russian  Agreement  (1899), 
31,  328-329. 

Anna,  case  of  the,  262  n. 

Arabia,  case  of  the,  144,  165-166 
n.,  173,  176-177. 

Arbitration,  98  n.,  134;  in  Ala- 
bama case,  98  n. ;  by  the  North 
Sea  Commission,  233  and  n., 
240-241  and  n. ;  of  the  Waima 
incident,  242  n. ;  in  the  case  of 
the  General  Armstrong,  262  n. ; 
between  England  and  Venezuela, 
325;  Hague  Conference  on,  347; 
President  Roosevelt's  proposals 
based  on,  354-355  n. 

Ardova,  seizure  of  the,  142  n. 

Argentine  Republic,  negotiations 
with,  for  the  purchase  of  war- 
ships, 94  and  n. 

Asakawa,  Dr.,  on  causes  of  the 
''Russo-Japanese  Conflict,"  2-3, 
9.  12-13  "•,  14  "•>  44  '''"d  n.,  46, 

49,  51- 
Askold,  the,  interned  at  Shanghai, 

205-206,  267. 
Asylum,  to  ships  of  war,  not  to  be 

abused,  203,  205;   conditions  of, 

210  and  n.;   Russia  accused  of 

abusing,  261. 
Aurora,   the,    interned    at   Manila, 

209-210. 


3^2 


INDEX 


Austria-Hungary,  41,   96,    210   n. ; 

accepts  Hay  Note,  247  n. 
Auxiliary  Navy,  German,  steamers 

of,  sold  to  Russia,  91  and  n.,  no. 

Balaskoff,  General,  charges  Japa- 
nese with  violation  of  rules  of 
warfare,  305. 

Balfour,  Premier,  142  n.,  144  n., 
148  n.,  197;  suggests  interning 
rescued  Russian  sailors,  'jd;  jus- 
tifies sale  of  merchant  vessels  to 
belligerents,  93 ;  on  necessity  of 
adjudication  by  prize  court,  145 
n. ;  on  right  of  visit  and  search, 
145  n.,  149  and  n. ;  on  use  of 
neutral  ports  by  belligerents, 
214-215;  Southampton  speech  of, 
on  North  Sea  Incident,  226-228; 
on  rights  of  belligerent  fleets  on 
the  high  seas,  227-228;  on  Inter- 
national Commission  of  Inquiry, 
233  n. 

Balloons,  those  carrying  despatch- 
es in,  not  spies,  116  n.,  135  n., 
279;  Russia  ~  agrees  to  Hague 
Declaration  prohibiting  the 
dropping  of  explosives  from, 
271,  317-318  and  n. ;  used  by 
Japanese  at  Port  Arthur,  305. 

Baltic  Fleet,  prolonged  inactivity 
of,  138;  voyage  of,  188,  190-194, 
202-217;  attacks  British  fishing 
fleet,  217-218;  consequent  excite- 
ment in  England,  218  and  n., 
220,  223-224 ;  detention  of,  at 
Vigo,  225-226  and  n. ;  use  of 
French  ports  and  territorial  wa- 
ters by,  191-93 ;  supplied  with 
coal  by  British  and  German  ves- 
sels, 203;  joined  by  Nebagatoff's 
squadron,  194;  destroyed  in  Ko- 
rean Straits,  194,  209,  347;  voy- 
age of,  illustrates  defects  in  law 
of  neutrality,  198,  202,  214. 

Base  of  operations,  112,  203,  212, 
214;  use  of  Madagascar  as  a, 
193 ;  use  of  Che-Foo  as,  261  n., 
266-267;  use  of  Mia-Tao  islands 
as,  259,  265. 

Base  of  supplies,  212,  264;  at  Sai- 
gon, 193,  198  and  n. 

Battle-field,  Japanese  Regulations 
relative  to  clearing  of,  291-294. 

Belgium,     Russian     purchase     of 


transports  in,  93 ;  accepts  Hay 
Note,  247  n. ;  neutralization  of, 
248. 

Belligerent  armed  vessels  (see 
Warships.') 

Belligerents,  rights  and  duties  of, 
as  affected  by  war,  62,  67,  85, 
272 ;  duties  of,  in  preventing 
abuse  of  wireless  telegraphy, 
119,  122-125,  134,  n.,  135  n. ; 
laying  submarine  mines,  130-132 
and  n.,  134  n.,  135  n. ;  right  of 
visit  and  search  by,  148-156,  177 
n. ;  rights  of,  in  sinking  neutral 
vessels,  156  and  n. ;  rights  of, 
on  high  seas,  227-228,  242-245 ; 
rights  and  duties  of,  according 
to   Russian   "Instructions,"  273- 

Benckendorff,  Count,  Russian  am- 
bassador at  London,  220-221, 
225  and  n.,  226,  338  n. 

Bismarck,  Prince,  84  n.,  116  n. 

Blockade,  of  Russian  fleet  at  Port 
Arthur,  138;  law  of,  172  n.,  181, 
264;  Russian  rules  of  warfare 
relating  to,  270. 

Board  of  Trade,  British  inquiry 
of,  at  Hull,  223  and  n. 

Boer  War,  questions  relating  to, 
154,  175,  179  n.,  295  n.,  299  n., 
301  n.,  310  n.,  315  n.,  333- 

Bombardment  (on  land)  of  towns, 
etc..  not  occupied  by  the  enemy 
prohibited,  274;  notification  nec- 
essary, 274;  Hague  Regulations 
on,  307  n. 

Bombardment  (naval),  question 
of,  unsettled,  306  and  307  n. ; 
Hague  Regulations  on,  311-312 
and  n. ;  opinions  of  publicists  on, 
312,  313-315  n. ;  recent  practice 
in  respect  to,  313-316,  and  316 
n. ;  of  Vladivostok  and  Gensan, 
311  and  n.,  316. 

Bosporus,  the,  138,  141,  148,  151. 

Boxer  uprising,  16,  256,  332,  ZZZ  "• 

Brazil.  213  n. 

Brussels  Code,  on  war  correspond- 
ents, 120  and  n. ;  compared  with 
Russian  "Instructions,"  272  n. ; 
the  basis  of  the  Hague  Regula- 
tions, 295  n. ;  on  prisoners  of 
war,  278  n. ;  on  flag  of  truce, 
279  n. ;  prohibitions  of,  301  n. 


INDEX 


\(^3 


Buena  Ventura,  case  of  the,  297  n. 

Billow,  German  Chancellor,  92, 
no.  III  n.,  334  n. 

Bureau  of  Information  for  prison- 
ers of  war,  Russia  fails  to  pro- 
vide, 278;  Art.  14  of  Hague 
Regulations  on,  28S-289;  Japan 
issues  Imperial  Ordinance  relat- 
ing to,  289-290;  duties  of,  288- 
291  ;  established  by  Japan,  284, 
319-320;   established  by  Russia, 

Z22. 

Cables,     submarine,     proposal     to 

connect    Japan    with    Philippine 

Islands  by  means  of,  78-79;  the 

law  of,  122-123  and  n.,  266. 

Calchas,  case  of  the,  144,  173,  1/6- 

178,  177  n. 
Capture,  right  of,  148,  I49  and  n. 
Caroline,  case  of  the,  96,  262. 
Cass,    Secretary,    lays    down    rule 

for  neutrals,  112-113. 
Cassini  Convention,  terms  of,  10- 

12. 
Cassini,  Count,  34  n.,  79,  115-116. 
119,  260,  268;  on  rights  of  bel- 
ligerent fleet  on  the  high  seas, 
242-243;  reply  to,  243-244;  on 
evacuation  of  Manchuria,  256. 
Cheltenham,  case  of  the,  138,  173 

n. 
Chesapeake,  case  of  the,  262  n. 
Che-Foo,  119,  259,  303,  349;  wire- 
less telegraph  station  at,  122  n., 
124  n.,   259,   266-267;   the   Rye- 
shitclni  at,  260;  use  of,  by  Rus- 
sia as  a  base,  261  n. 
Chemulpo,  44,  47,  5i,  66,   70,   71, 

75.  175  n.  _ 
Chile,  negotiations  with,  for  pur- 
chase of  warships,  94  and  n. ; 
sells  such  vessels  during  Chino- 
Japanese  War,  97  n. 
China.  Japan's  interest  in,  2,  26,  36. 
325-340;  threatened  dismember- 
ment of,  2,  327.  334;  open  door 
in,  2.  24.  25,  26,  28,  35.  54.  56, 
328-338,  356-357.  359;  independ- 
ence and  territorial  integrity  of, 
2,  26.  28.  29  n..  52,  53-54.  56.  58, 
60,  328.  332.  334.  336,  338  and  n., 
357.  359;  cedes  Liao-tung  Pe- 
ninsula, 7;  concludes  Cassini 
Convention,     10-12;     agrees     to 


fortify  Port  Arthur  and  Talien- 
wan,    12;    concludes    agreement 
with    the    Russo-Chinese    Bank, 
13-14;  leases  Kiao-chau  to  Ger- 
many,  15,  Z27;  leases   Port  Ar- 
thur and  Talien-wan  to  Russia, 
15,  256  n.,  327;   leases  Wei-hai- 
wei    to   Great    Britain,    15,   328; 
leases    Kwang-chau    Bay    to 
France,  16,  328;  refuses  to  sign 
Lamsdorff-Yang-yu  Convention, 
22;    agrees   to   protect   railways 
and  Russians  in  Manchuria,  24; 
refuses  to  sign  agreement  with 
Russia  regarding  Russo-Chinese 
Bank,  26 ;  makes  counter  propos- 
als,   26,    29;    interests    of    Great 
Britain  in,  26,  325,  34°;   agrees 
to  observe  agreement  with  Rus- 
so-Chinese Bank.  29;  enters  into 
convention  with  Russia  for  evac- 
uation of  Manchuria,  29-32,  2,Z7 ', 
rejects  seven  Russian  demands, 
34-36  n.,  337;  refuses  six  fresh 
Russian  demands,  36  n.,  57;  re- 
lations  with   Korea,  2>7  ff-    (see 
Korea)  ;      interest      of      United 
States   in,   79,   325-34°;    Anglo- 
Russian    Agreement    respecting, 
328-329;    Anglo-German   Agree- 
ment respecting.  329;  Hay's  Cir- 
cular Note  of  1899  respecting  in- 
terests in,  329-331;   ^Ir.   Choate 
on  interests  in,  331 ;  Hay  second 
circular    note    respecting    condi- 
tions in,  332;  representations  of 
Japan,  Great  Britain,  and  United 
States    to.    334-335;    appeals    to 
Powers,  334-335  ;  Secretary  Hay 
protests  against  proposed  agree- 
ment   witii.    relating    to    Russo- 
Chinese    Bank.    335;    concludes 
commercial    treaty   with    United 
States,  338;  concludes  commer- 
cial  treaty   with   Japan.   338  n.; 
gives    notice    that    she    will    not 
recognize     arrangements     made 
regarding  Manchuria.  349  n. ;  re- 
organization of.  by  Japan,  356. 
Giina,   questions   relating  to   neu- 
trality  of:    Limits    stay   of  bel- 
ligerent    warships     in     neutral 
port  to  twenty-four  hours.  88  n., 
213  n. ;  demolishes  wireless  tel- 
egraphy station  at  Chc-Foo,  122 


3^4 


INDEX 


n. ;  vacillating  conduct  of,  in  the 
case  of  the  Mandjur,  188-189, 
267;  of  the  Czarevitch  and  Gro- 
sovoi,  205-206,  267;  incapable  of 
perfectly  fulfilling  her  neutral 
obligations,  216,  267-268;  guar- 
anteed by  Hay  Note  of  February 
10,  1904,  188  n.,  246-247,  338; 
meaning  of  term  neutrality  as 
applied  to,  248-249;  anomalous 
position  of,  in  respect  to  Man- 
churia, 249-251;  danger  of  in- 
ternational complications  be- 
cause of  threatened  violations 
of,  251,  260;  Admiral  Alex- 
iefT's  proclamation  not  a  vio- 
lation of,  252-254;  Russian 
complaints  of  violations  of,  254- 
259;  dispatch  of  Chinese  troops 
to  Manchurian  frontier  not  a 
violation  of,  254;  presence  in 
Chinese  army  of  a  few  Japa- 
nese military  instructors  not  a 
violation  of,  255  ;  landing  of  Jap- 
anese troops  in  region  west  of 
the  Liao  River  not  a  violation  of, 
257-258 ;  Russia  specifies  five  dis- 
tinct breaches  of,  258-259 ;  Japan 
alleges  numerous  violations  of, 
by  Russia,  259,  261  and  n. ; 
China  alleges  violations  of,  by 
Russia,  259-260,  265-267 ;  alleged 
violations  of,  by  China,  264-265 ; 
trivial  nature  of  most  of  these 
allegations,  260,  264,  267 ;  the 
seizure  of  the  Rycshitclni  a 
gross  violation  of,  260-264;  re- 
plies to  Russian  charges  of  vio- 
lation of,  264-265 ;  alleged  viola- 
tion of,  in  region  west  of  the 
Liao  River,  257-258,  261  n.,  265- 
266;  lax  enforcement  of,  in  case 
of  wireless  telegraphy  station  at 
Che-Foo,  122  n.,  259,  261  n., 
266-267;  reasonable  success  in 
maintenance  of,  267-268. 

Chinese  clothing,  use  of,  by  Rus- 
sian troops,  307-308. 

Chinese   Eastern   Railway,    13,    15, 

57-58,  351,  356. 
Ching,  Prince,  23,  29. 

Chino-Japanese  War,  questions  re- 
lating to,  6,  43,  65  n.,  97  n.,  304 
n.,  327. 


Choate,   Mr.,   American   ambassa- 
dor at  Court  of  St.  James,  331. 

Chuncheses,  the,  2)^,  252,  254-255, 
259,  264. 

Cincinnati,  case  of  the,  177  n. 

Circular  Notes  to  the  Powers: 
Hay  Note   (Sept.  6,  1899),  329- 

330. 
Second  Hay  Note  (July  3,  1900), 

Russian  Note    (July,   13,   1900), 

17  n. 
Russian  Note    (Aug.  28,   1900), 

17. 
Hay  Note  (Feb.  10,  1904),  246- 

247,  338. 
Russian   Note    (Feb.   22,    1904), 

67,  70-71. 
Russian  Note   (April  15,  1904), 

11S-116. 
Hay  Note  (June  10,  1904),  168- 

170. 
Russian  Note  (Jan.,  1905),  258- 

259- 
Coal,  as  contraband,  138,  160,  161 
n.,  162  n.,  164,  166,  168  and  n., 
169,  170,  171,  180,  201,  203. 
Coal,  the  supply  of,  to  belligerent 
vessels  in  neutral  ports  and  wa- 
ters, 88-89  and  n.,  190-198;  im- 
portance of,  in  naval  warfare, 
89  n.,  200-203 ;  used  in  stopping 
neutral  vessels,  189;  the  Baltic 
Fleet  supplied  with,  190-198,203  ; 
supply  of,  during  American  Civil 
War,  190,  198  and  n. ;  diverg- 
ence in  practice  in  respect  to  the 
supply  of,  198-199  and  n.;  ad- 
vanced ground  taken  by  Great 
Britain  in  respect  to,  199;  in- 
structions by  Egyptian  Govern- 
ment in  respect  to,  199-200; 
Proclamation  of  Governor  of 
]\Ialta  forbidding,  200;  present 
regulations  respecting,  insuffi- 
cient to  preserve  neutrality,  202- 
203 ;  opinions  of  authorities  on, 
211-212  n. 
Commerce,  neutral  rights  of,  162 
n.,  165  n.,  167,  170,  180-181,  226 
and  n.,  242-245,  269-270;  Rus- 
sian rules  of  warfare  relating  to, 
269-271. 
Commcrccn,  case  of  the,  172  n. 


INDEX 


365 


Conger,  Mr.,  American  Minister 
to  China,  23,  127  n.,  254  n. 

Contraband  of  war,  arms  and  am- 
munition as,  107,  160,  161  n., 
163  and  n.,  168,  180;  coal  as, 
138,  160,  161  n.,  162  n.,  164,  166, 
168  and  n.,  169,  170-171,  180, 
201,  203;  cotton  as,  165,  168  n., 
170,  176  and  n.,  178,  180;  food 
stuffs  as,  160-161  n.,  164-166  n., 
167-168  n.,  170,  175-176,  179  and 
n.,  180,  182 ;  fuel  as,  164,  165  n., 
168-170;  horses  as,  160,  162  n., 
168,  169,  183 ;  machinery  as,  160, 
164,  166  n.,  176  and  n. ;  money 
as,  85,  162  n. ;  railway  material, 
164,  167,  173  n.,  174,  175  and  n., 
176,  179-180;  rice  as,  164,  166, 
169;  submarines  classed  as,  95, 
III ;  telegraphic  material  as,  160, 
164,  166-167,  179-180;  telephonic 
material  as,  160,  164,  179-180; 
timber  as,  160,  162  n.,  173  n., 
176;  war  vessels  as,  103-104; 
wireless  telegraphy  apparatus  as, 
123  and  n. 

Contraband  of  war,  cases  on,  aris- 
ing during  the  war: 
The  Allanton,  138,  171-172. 
The  Arabia,  144,  165-166  n.,  173, 

176-177. 
The  Calchas.  144,  173,  176-178. 
The  Cheltenham,  138,  173  n. 
The  Fulton,  95,  Ii2  n. 
The  Ikhona,  143,  147  n. 
The    Knight    Commander,    144- 

147,  173-174  and  n. 
The  Malacca,  139,  140-141,  151- 

152. 
The  Princess  Marie,  143  n.,  147 

n. 
The  Protector,  94-96,  112-114. 
The  St.  Kilda,  143  n.,  147  n. 

Contraband  of  war,  division  of. 
into  absolute  and  conditional 
contraband,  160;  latter  opposed 
by  Continental  publicists,  162- 
163  n. ;  doctrine  of  intent  as 
applied  to.  107  n. ;  importation 
of,  into  Dalny  from  Chinese 
ports,  259;  Japan's  list  of,  160- 
161 ;  questions  relating  to,  160- 
168;  right  of  visit  and  search 
for,  136,  148-156;  Russia  wholly 
ignores   Grotian    distinction   be- 


tween absolute  and  conditional 
contraband,  163 ;  British  and 
American  protests  against  Rus- 
sian view,  145-146  and  n.,  167 
and  n.,  178,  179-182;  Lord  Lans- 
downe  criticizes,  178-179;  Sec- 
retary Hay  on,  179-182;  Rus- 
sian view  modified,  182-183 ; 
Russia's  list  of,  163-165 ;  in- 
terpretation of,  165-166  n. ;  Rus- 
sian rules  of  warfare  relating  to, 
269-270;  sinking  of  vessels  for 
carrying,  143  n.,  144-147;  smug- 
gling of,  by  Russians  from 
China  into  ^^lanchuria,  260; 
trade  in,  107,  138;  legality  of 
trade  in,  183-187,  264;  views  of 
authorities  and  modem  practice 
as  to,  185-187  and  notes. 
Continuous    voyage,    doctrine    of, 

172  n.,  175  n. 
Conventions     (see    also    Treaties, 
Agreements,  and  Alliances)  : 
Convention  of  Tientsin    (1885), 

41. 
Russo-Turkish    Convention 

(1891),  148  n. 
Cassini       Convention        (1896), 

terms  of,  10-12. 
Convention  of  Peking  (1895),  8. 
Conventions   of   Hague   Confer- 
ence (1899),  (see  Hague  Con- 
ference). 
Lamsdorff  -  Yang-yu     ( i  9  o  i  ) , 

terms  of.  21-22. 
Proposed  Convention  of  Evacu- 
ation (1901),  23-24. 
Convention    for    Evacuation    of 
Manchuria    (1902),   terms   of, 

29-32,  337- 
Convention   between   Japan   and 
Korea  (1905),  75  "-,  356. 

Contributions  to  Red  Cross  So- 
ciety, legality  of,  80-81 ;  com- 
munication from  Secretary  Hay 
to  Mr.  Takahira  regarding,  81  ; 
no  sound  objections  to,  84;  the 
right  to  make  gifts  for  warlike 
purpose  doubtful,  84. 

Contributions  for  niilitar>'  pur- 
poses permissible,  253;  condi- 
tions under  which  they  may  be 
imposed.  275  and  n.;  whether 
permissible  in  case  of  bombard- 
ment by  naval  force,  314-315  n. 


366 


INDEX 


Convicts,  enlistment  of,  by  Russia, 
309-311. 

Convoy,  neutral  and  enemy,  150- 
151  and  n. 

Correspondents,  newspaper,  rights 
of,  in  war,  1 15-125;  Russia 
threatens  to  treat,  as  spies,  115- 
117  and  n. ;  status  of,  119-121 
and  n. ;  entitled  to  privileges  of 
prisoners  of  war,  120-121 ;  may 
be  excluded  from  belligerent 
territory,  122;  harder  to  control 
since  the  invention  of  wireless 
telegraphy,  122. 

Cossacks,  the  accusations  against, 
308. 

Crimean  War,  questions  relating 
to,  5,  175  n.,  260  n.,  296,  352  n. 

Czar,  the  (see  also  Russia),  issues 
Manifesto  of  February  10,  67; 
orders  release  of  colliers  seized 
in  the  Red  Sea,  138;  insists  upon 
release  of  Malacca,  141 ;  orders 
Admiral  Rojestvensky  to  leave 
Kamranh  Bay,  194;  orders  dis- 
armament of  the  Askold  and 
Grosvoi,  206;  expresses  regret 
and  promises  reparation  in 
North  Sea  Incident,  219-220, 
226 ;  accepts  principle  of  Inter- 
national Commission  of  Inquiry, 
225,  and  n. ;  given  credit  for  so- 
lution of  North  Sea  Incident,  228 
n. ;  ratifies  "Instructions"  to  the 
Russian  army,  271-272;  agrees 
to  divide  Sakhalin,  354  and  n. 

Czarevitch,  visit  of,  to  the  Far 
East,  6. 

Czarevitch,  the,  interned  at  Tsing- 
tau,  204. 

Dalny  (see  Talien-zvan). 

Dardanelles,  the,  138,  141,  148,  151. 

"Days  of  Grace"  allowed  to  enemy 
merchantmen  in  belligerent 
ports  at  outbreak  of  war,  Rus- 
sian rules  relating  to,  269,  295- 
296;  Japanese  rules  relating  to, 
281-282,  295-296 ;  recent  prac- 
tice respecting,  296-297  and  n. 

Dead,  the,  Russian  Regulations 
relative  to,  291-294;  customary 
to  grant  truce  for  burial  of,  304 
and  n. ;  mutilation  of,  308-309 
and  n. 


Declarations : 

Declaration    of    St.    Petersburg 

(1868),  270,  271  n.,  318  n. 
Declarations   of  Hague   Confer- 
ence  (1899),  271  and  n.,  317- 
318  and  n. 
Russo-French    (1902),    text    of, 

28-29. 
Russian      Declaration       (1904), 
threatening  to  treat  war  cor- 
respondents as  spies,  115-117. 
Declaration    of    St.     Petersburg 
(1904),  231-234  and  notes,  241 
and  n. 
Declaration    (Chinese)    of  Neu- 
trality (1905),  254  n.,  257,  265. 

Declaration  of  war  no  longer  nec- 
essary, 62  ff. ;  views  of  older 
authorities  as  to,  62  n. ;  views 
of  modern  authorities  on,  62-64 
and  notes ;  practice  in  seven- 
teenth century  as  to,  64  n. ;  in 
eighteenth  century,  63  n. ;  recent 
practice  and  historical  examples, 
64-65  and  notes ;  does  not  ex- 
clude surprise  or  treachery,  65; 
ultimatum  a  conditional  declara- 
tion, 66;  charges  of  Japan 
against  Russia  regarding,  exam- 
ined, 66  ff. 

Dccrhound,  case  of  the,  yy  n. 

Demurrage,  payment  of,  by  Rus- 
sia, 137  and  n. 

Denmark,  limits  stay  of  belliger- 
ent warships  in  neutral  ports  to 
twenty-four  hours  and  supply  of 
coal  in  neutral  waters,  88-89  "•  j 
accepts  Hay  Note,  247  n. 

Destination,  belligerent,  essential 
in  case  of  contraband,  162  n., 
168,  169,  175  n.,  180. 

Detention  of  neutral  merchant- 
men, 136-137. 

Diana,  the,  interned  at  Saigon, 
196,  204. 

Diplomacy,  European,  real  charac- 
ter of,  9;  modern  methods  of, 
70;  Treaty  of  Portsmouth  inter- 
esting to  students  of,  346-347; 
Japanese  diplomacy  at  Ports- 
mouth, 355-356. 

Diplomatic  relations  between 
Japan  and  Russia  severed,  61, 
68-70 ;  effect  of  breach  of,  66. 

Disarmament    of   belligerent   war- 


INDEX 


367 


ships  m  neutral  ports  (see  In- 
ternment). 

Dmitri  Donskoi,  the,  violates  neu- 
traHty  of  Egypt,  189;  fired  upon, 
during  North  Sea  Incident,  238 
n. 

Dogger  Bank,  217,  219,  223  n. 

Double  or  ambiguous  sovereignty, 
law  of,  249-251 ;  examples  of, 
250  n.;  Manchuria  an  example 
of,  249-250,  253 ;  analogous  to 
military  occupation,  253. 

Due  diligence,  98  n.,  102 ;  rule  of, 
97-98 ;  difiference  of  opinion  re- 
garding meanins:  of,  99  n.,  104, 
106;  criticism  of  American  defi- 
nition of,  104-105  and  n. ;  proof 
of  lack  of,  necessary,  114  n. 

Dumdum  bullets.  Declaration  of 
Hague  Conference  prohibiting 
use  of,  271,  318  and  n. ;  Russia 
accused  of  using,  317;  contro- 
versy respecting  use  of,  318  n. 

Egypt,  questions  relating  to  neu- 
trality of,  138,  189,  192  and  n., 
199-200;  an  example  of  double 
sovereignty,  250  n. 

Elba,  the,  rescues  Russian  sailors 
at  Chemulpo,  75  and  n. 

England    (see  Great  Britain). 

Enemy  State,  moveables  of,  may 
be  taken,  272, ',  peaceful  inhabi- 
tants of,  not  to  be  injured,  280. 

Enlistment,  legality  of,  82-83 !  for- 
bidden by  President  Roosevelt's 
Proclamation  of  Neutrality,  87 ; 
Chinese  Government  on,  264;  of 
convicts  by  Russia,  309-311. 

Equal  opportunity,  principle  of,  2, 
26,  28,  52,  53. 

Etfrickdale,  seizure  of  the,  137  n. 

Evacuation  (see  Conventions  and 
Manchuria). 

Evarts,  Secretary,  classes  torpedo 
craft  as  contraband,  iii. 

Expedition,  hostile,  duty  of  neu- 
tral to  prevent,  loi ;  a  modem 
warship  an  approximation  of, 
112. 

Explosives  dropped  from  balloons, 
declaration  relating  to  use  of, 
271,  317-318  and  n. ;  Japanese 
accused  of  using,  to  produce 
poisonous  gases,  316. 


Far  East,  interests  of  Russia  in, 
2-;^,  28;  visit  of  Czarevitch  to, 
6;  interests  of  France  in,  28; 
voyage  of  Baltic  Fleet  to,  190, 
198,  217;  cooperation  of  Eng- 
land, Japan,  and  United  States 
in,  325,  333-340;  interests  of 
United  States  in,  327,  331,  339- 
340;  interests  of  Great  Britain 
in,  331,  339^340.  359;  Japan  de- 
mands limitation  of  Russian 
naval  forces  in,  351 ;  Russian  ad- 
vance in,  checked,  356  and  n. 

Far  Eastern  Question,  the,  as  af- 
fecting relations  of  England  and 
United  States,  325-341  ;  as  af- 
fected by  Anglo-Japanese  Alli- 
ance of  January  30,  1902,  336. 

Felicity,  case  of  the,  156. 

Fishery,  rights  of,  granted  by  Rus- 
sia to  Japan,  343,  351,  356. 

Flags  of  truce,  unlawful  use  of, 
274,  301  and  n.,  303,  304  n.,  309; 
rights  of  bearer  of,  278-279,  281, 
304;  ignored,  303. 

Fleets,  belligerent,  rights  of,  in 
neutral  ports  and  waters  (see 
also  Baltic  Fleet),  200,  214; 
rights  of  on  high  seas,  227-228, 
242-245. 

F 00 ping,  case  of  the,  259. 

Foreign  Enlistment  Acts  of  Great 
Britain,  82,  97  n.,  99-100  and  n., 
108.  no  n.,  190,  204. 

Florida,  case  of  the,  262  n. 

Formosa,  seizure  of  the,  142  n. 

Foxton  Hall,  the,  Russia  grants 
compensation  for  losses  sus- 
tained by,  137  n. 

Fram,  case  of  the,  186  n. 

France,  intervenes  to  secure  retro- 
cession of  Liao-tung  Peninsula, 
7 ;  leases  Kwang-chau  Bay  from 
China,  16.  328;  declaration  of, 
regarding  Anglo- Japanese 
Agreement,  28-29:  interests  of, 
in  the  Far  East,  28;  fails  in  per- 
formance of  neutral  duties,  78 
n.,  90.  igo-198;  advises  release 
of  the  Malacca,  141 ;  makes  rice 
contraband.  161  n. ;  declares  coal 
not  contraband,  169;  declara- 
tion of.  in  respect  to  trade  in 
arms  and  ammunition,  186  n. ; 
exchanges   friendly   communica- 


368 


INDEX 


tions  with  Japan,  189;  "Instruc- 
tions" of,  189-190,  194,  199,  202; 
permits  Russian  vessels  to  take 
full  supply  of  coal  at  Jibutil, 
190;  permits  Baltic  Fleet  to  coal 
at  French  ports,  191-192;  to  coal 
and  winter  at  Nossi-Be,  192; 
to  receive  supplies  from  Saigon, 
193 ;  to  use  coast  and  waters  of 
Indo-China,  194;  enters  general 
denial  of  Japanese  charges,  195; 
lays  down  four  general  proposi- 
tions, 195-196;  declares  Japa- 
nese remonstrances  unjustifiable 
for  four  reasons,  196-197 ;  draws 
up  five  "Conclusions,"  197-198; 
accepts  Hay  Note,  247  n. ;  "Reg- 
ulations" of,  for  prisoners  of 
war,  278  n. ;  allows  days  of  grace 
at  beginning  of  Crimean  War 
and  in  1870,  296;  orders  Ger- 
mans to  leave  Paris  in  1870, 
299  n. ;  transmits  Russian  pro- 
test against  alleged  infraction  of 
laws  of  war  by  Japan,  306 ;  criti- 
cised for  employing  Turcos  in 
1870,  310  n. ;  violates  territorial 
integrity  of  China,  328;  replies 
to  Hay  Circular  Note  of  Sep- 
tember 6,  1899,  338 ;  relations  of, 
with  Russia,  334  n. ;  policy  of, 
in  the  Orient,  339. 

Franco-German  War,  questions 
arising  during,  204  n.,  315  n. 

Frankly,  seizure  of  the,  137  n. 

Fulton,  case  of  the,  95,  112  n. 

Fu  Ping,  the,  fired  upon,  136  n. 

Fiirst  Bismarck,  sale  of  the,  to 
Russia,  91. 

Geneva  Award,  83,  97,  98  n.,  104, 
113   (see  also  Alabama  Case). 

Geneva  Convention,  Russia  agrees 
to  observe,  270,  271  and  n. ;  com- 
pared with  Russian  "Instruc- 
tions," 272-273  n. ;  276  n. ;  Rus- 
sia accuses  Japan  of  violating, 
302,  305. 

General  Armstrong,  case  of  the, 
262-263  n. 

Gensan,  bombardment  of,  311,  316. 

Germany,  intervenes  to  secure  re- 
trocession of  Liao-tung  Penin- 
sula, 7;  secures  lease  of  Kiao- 
chau,    15,   327;    protests    against 


the  Alexief¥-Tseng  Agreement, 
19;  fails  in  the  performance  of 
neutral  duties,  78  n.,  90,  91-93; 
iio-iii;  fails  to  prevent  sale  to 
Russia  of  vessels  belonging  to 
Auxiliary  Navy,  91  and  n.,  no; 
fails  to  prevent  exportation  of 
torpedo  boats  overland  to  Rus- 
sia, 91-92 ;  orders  for  torpedo 
craft  placed  in,  96;  protests 
against  confiscation  of  mails  of 
Prinz  Heinrich,  139-140;  re- 
newed excitement  in,  caused  by 
subsequent  seizures,  142 ;  correct 
in  claiming  that  Russia  had  no 
right  to  remove  mail  bags,  155- 
156;  remonstrates  against  export 
of  coal  to  France,  161  n. ;  per- 
mits use  of  its  auxiliary  cruisers 
to  furnish  coal  to  Baltic  Fleet, 
203 ;  position  of,  in  the  matter 
of  repairs  of  belligerent  war- 
ships in  neutral  ports,  204  n. ; 
enforces  twenty-four  hour  rule, 
204,  213  n. ;  destitute  Japanese 
transported  from  Russia  to,  298 
and  n. ;  suggests  Hay  Note,  247, 
338;  accepts  Hay  Note,  247  n. ; 
guilty  of  violation  of  laws  of 
warfare  during  Franco-Prussian 
War,  315  n. ;  violates  territorial 
integrity  of  China,  328;  enters 
into  Agreement  with  England, 
329;  replies  to  Hay  Circular 
Note  of  September  6,  1899,  330; 
indifference  of,  to  fate  of  Man- 
churia, 334  n. ;  makes  representa- 
tion to  China,  334-335  "• ;  policy 
of,  in  the  Orient,  339 ;  supports 
President  Roosevelt  in  repre- 
sentations to  Czar,  348  n. 

Gifts  or  subscriptions  to  Red 
Cross  Society  not  illegal,  8o-8r ; 
subscriptions  to  funds  raised  in 
behalf  of  Greek  revolutionists 
held  illegal,  86. 

Good  offices,  Hague  Conference 
on,  347. 

Governor  of  Malta,  Proclamation 
of,  forbidding  coal  to  belligerent 
fleets  or  warships,  200,  202. 

Goyo  Maru,  the,  justifiable  sink- 
ing of,  by  Russians,  300. 

Great  Britain,  advises  Japan  to  re- 
cede the  Liao-tung  Peninsula,  8; 


INDEX 


369 


leases  Wei-hai-wei  from  China, 
15,     327;     protests    against    the 
Alexiefif-Tseng    Agreement,    19, 
334;  protests  against  the  Lams- 
dorfif-Yang-yu     convention,     22, 
335 ;    protests    against    Russian 
demands     on     China     regarding 
Russo-Chinese  Bank,  24,  26;  in- 
terests of,  in  China,  26,  331,  339- 
340,    359;    enters   into    defensive 
alliance  with  Japan,  26-29,  336- 
2)2>7',    protests    against    Russia's 
seven    new    demands,    36,    337; 
seizes  Port  Hamilton,  42;  evac- 
uates the  island,  43;  sends  seven 
British  men-of-war  to   Chemul- 
po, 47;   instigates    China   to   re- 
fuse six  fresh  Russian  demands, 
57 ;   at   first   insists   upon  taking 
rescued     Russian     sailors     into 
British  territory.  76;  fails  to  per- 
form   its   neutral    duties    in    the 
case   of  the  Dcerhound,   77   n. ; 
refuses     request     of     submarine 
cable    during    Spanish-American 
War.    79;    observes   neutral    du- 
ties during  war,  89 ;  purchase  in, 
by  Russia,  of  vessels  for  use  as 
transports,    93;    battleships    or- 
dered in,  by  Japan,  93;  fails  to 
prevent  delivery  of  the  Caroline 
to   Russia,  96;   agrees  to   abide 
by  rules  of  Treaty  of  Washing- 
ton, 98  n. ;  fails  to  use  due  dili- 
gence  in   the   case   of   the  Ala- 
bama,   113;     Russian    note    to, 
threatening    to    treat    war    cor- 
respondents as  spies,  116  n.;  re- 
ceives   assurances    from    Russia 
in  reply  to  note,  117  n. ;   storm 
of    indignation    in,    because    of 
seizure     of     Malacca,     139-140; 
protests   against    Russian    viola- 
tion of  neutral  rights,    139-142; 
demands     release     of     Malacca, 
140;  instructs  Admiral  Domville 
to    patrol    the    Red    Sea,     140; 
claims     Malacca     was     carrying 
government  stores,  140-141  ;  pro- 
tests against  visit  and  search  by 
Russian    Volunteer    Nav>',     141 
and  n. ;  excitement  in,  caused  by 
subsequent  seizures.  142  and  n.; 
conveys  orders  of  Russian  Gov- 
ernment to  Russian  warships.  142 


n.,    143  n. ;    renewed  excitement 
in,  because  of  sinking  of  Knight 
Commander,     142-144;    protests 
against    the    sinking    of   Knight 
Commander,  144.-145;  occasional 
protest    of,    against    passage    of 
Straits    by    Russian    Volunteer 
Navy,    148  n.;   the  great   cham- 
pion   of    belligerent    rights    on 
high  seas,  149 ;  practice  of,  in  re- 
spect   to    convoy,     150-151     n. ; 
practice    of,    in    respect    to    de- 
struction of  prizes,  158  n.;  pro- 
tests   against    Russia's   inclusion 
of    food    stuffs    as    contraband, 
169;     protests    against    Russian 
view  of  contraband  and  sinking 
of    neutral     merchantmen,     178, 
339;    position   of,   in   respect   to 
food   stuflfs   as   contraband   dur- 
ing the  Boer  War,  179  n. ;  makes 
further  representations  to   Rus- 
sia as  to  coal  and  cotton,   183; 
enforces   twenty-four  hour  rule 
and  limits  supply  of  coal  to  Rus- 
sian   warships.    190;    takes    ad- 
vanced ground  in  respect  to  sup- 
ply of  coal   to  belligerent   war- 
ships, 199;  issues  instructions  to 
Colonial    Governors    forbidding 
coal    to    belligerent    fleets    and 
warships,    200    and    n. ;    regards 
coal  as  ancipitis  usus,  201 ;  per- 
mits   subjects    to    furnish    coal, 
201,  203 ;   forbids  access  of  bel- 
ligerent warships  to  ports  of  the 
Bahama      Islands      during     the 
American  Civil  War,  210  n. ;  in- 
troduces  twenty-four   hour   rule 
and  limitation  of  coal-supply  into 
international  practice,  213  n. ;  en- 
forces    twenty-four     hour     rule 
during     the     Spanish- American 
War,  213  n.;  anger  and  excite- 
ment   in,   caused  by   North    Sea 
Incident.  218  and   n.,  220,   223- 
224.  226  n. ;  fleets  of,  ordered  to 
meet  at  Gibraltar,  220-221 ;   de- 
mands   of.    upon     Russia,    224; 
suggests   International   Commis- 
sion of  Inquiry.  224-225;  nego- 
tiations of.  with  Russia  respect- 
ing the   scope  and  organization 
of  North  Sea  Commission.  22R- 
231  ;    signs    Declaration    of    St. 


370 


INDEX 


Petersburg,  231 ;  "Conclusions" 
of,  235;  accepts  Hay  Note,  247 
n. ;  conduct  of,  during  Boer 
War,  295  n.,  301  n.,  310,  318  n. ; 
allows  six  weeks  of  grace  at  the 
beginning  of  Crimean  War,  296 ; 
opposes  prohibition  of  bombard- 
ment by  naval  force,  311  n. ;  re- 
fuses to  sign  the  three  Declara- 
tions of  the  Hague  Conference, 
318  n. ;  decides  to  stop  manufac- 
ture of  dumdum  bullets,  318  n. ; 
relations  of,  with  the  United 
States  as  afifected  by  the  Far 
Eastern  Question,  325-341 ; 
friendship  with  United  States 
greatly  strengthened  by  cooper- 
ation in  Far  East,  325,  333-340; 
changed  attitude  of,  toward 
United  States  during  recent 
years,  325-326;  sympathy  of, 
with  United  States  during  Span- 
ish-American War,  326;  fails  to 
enter  a  formal  protest  against 
lease  of  Port  Arthur  and  Kiao- 
chau,  327;  fails  to  secure  open- 
ing of  Port  Arthur,  327  n. ;  vio- 
lates territorial  integrity  of 
China,  328;  enters  into  Agree- 
ment of  April  28,  1899  with 
Russia,  328-329 ;  enters  into 
Agreement  of  October  16,  1900, 
with  Germany,  329;  replies  to 
Hay  Circular  Note  of  Septem- 
ber 6,  1899,  330  n. ;  Mr.  Choate 
on  policy  of,  in  China,  331 ;  in- 
terests of,  and  United  States  in 
the  Orient  identical,  331,  338  n., 
339-340;  supported  by  United 
States  and  Japan  in  China,  333- 
340;  concludes  offensive  and  de- 
fensive alliance  with  Japan,  355, 
357 ;  recognizes  paramount  in- 
terests of  Japan  in  Korea,  358- 
359. 

Groderkoff,  General,  on  conquest 
of  Manchuria,    16-17. 

Grosovoi,  case  of  the,  interned  at 
Shanghai,  206,  267. 

Hague  Conference  (1899),  Con- 
ventions of,  Russia  agrees  to  ob- 
serve, 270-271  and  n. ;  Declara- 
tions of,  271  and  n.,  317-318  and 
n. ;    on    International    Commis- 


sions of  Inquiry,  224-225,  231 
and  n. ;  232,  240 ;  expresses  a 
wish  for  a  Conference  to  revise 
Geneva  Convention,  276  n. ;  Ja- 
pan and  Russia  both  signatories 
of,  295 ;  expresses  a  wish  that 
naval  bombardment  be  con- 
sidered at  a  future  Conference, 
311-312  n. ;  on  cases  not  includ- 
ed in  the  "Regulations,"  312 ; 
controversy  in  as  to  use  of  dum- 
dum bullets,  318  n. ;  on  media- 
tion, 347. 

Hague  Conference,  Regulations 
of,  on  carrying  dispatches  in 
balloons,  116  n. ;  on  war  corre- 
spondents, 121 ;  definition  of 
spy,  121  and  n. ;  do  not  prohibit 
use  of  submarines,  130  n. ;  pro- 
vide for  interment  of  belligerent 
troops  on  neutral  soil,  76,  211  n. ; 
Russia  agrees  to  observe,  270-271 
and  n. ;  question  as  to  the  bind- 
ing character  of,  271-272  n. ; 
compared  with  the  Russian  "In- 
structions," 272  n.,  275  n.,  278 
n.,  279  n.,  285  n.,  286  n.,  287  n. ; 
provide  for  Bureau  of  Informa- 
tion for  prisoners,  278,  319; 
based  upon  Rules  of  Brussels 
Conference,  295  n. ;  ignored  dur- 
ing Boer  War,  295  n. ;  prohibi- 
tions of,  301  and  n. ;  Russia  ac- 
cuses Japan  of  violating,  302, 
305 ;  relate  merely  to  land  war- 
fare, 306-307  and  n.,  311;  on 
sieges  and  bombardments,  307 
n. ;  leave  question  of  naval  bom- 
bardment unsettled,  307  n. ;  Ja- 
pan accuses  Russia  of  violating, 
307;  on  militia  and  volunteer 
corps,  306-307 ;  on  bombard- 
ment of  undefended  towns,  311- 
312  n. 

Hague  Conference,  questions  for 
consideration  at  the  coming 
Conference,   134,  155,  203,  245. 

Hague  Tribunal,  questions  for 
reference  to,  134,  155. 

Hainiun,  the,  sends  dispatches  by 
means  of  wireless  telegraphy, 
117-119  and  n. 

Hamilton,  on  right  of  neutrals  to 
trade  in  contraband,  186. 


INDEX 


371 


Hansa,  the,  fired  upon  by  the  Jap- 
anese, 136  n. 

Hardinge,  Sir  Charles,  British 
Ambassador  at  St.  Petersburg, 
143  n.,  145  n.,  182,  183,  219,  222, 
and  n.,  230,  231. 

Hatsuse,  the,  blown  up  by  a  sub- 
marine mine,  126,  129  n.,  132  n. 

Hay  note  of  February  10,  1904,  text 
of,  246-247;  acceptance  of,  by 
the  Powers  and  China,  246 ;  con- 
ditional acceptance  of,  by  Russia 
and  Japan,  247-248;  meaning  of 
term  "administrative  entity"  as 
used  in,  246  n. ;  meaning  of 
"neutrality"  as  used  in,  248-249; 
Manchuria  exempted  from  ap- 
plication of,  246  n.,  249,  253, 
258;  tended  to  prevent  serious 
violation  of  Chinese  Neutrality, 
268;  in  accordance  with  prece- 
dents, 338. 

Hay,  Secretary,  protests  against 
Russian  demands  on  China,  24; 
denies  that  United  States  was 
considering  application  for  sub- 
marine cable,  79;  communica- 
tion of,  to  Mr.  Takahira.  81 ; 
on  the  ambiguity  of  Russian 
phraseology  in  his  Note  of  Au- 
gust 30,  1904,  165-166  n.,  179; 
Circular  of,  on  Russian  list  of 
contraband,  168-170;  requests 
investigation  in  case  of  Cincin- 
nati, 177  n. ;  protests  against 
Russian  view  of  contraband  in 
case  of  Arabia,  179-183;  on  na- 
ture of  contraband.  180-181 ;  on 
Russian  doctrine  of  contraband, 
181  ;  proclaims  neutrality  and 
administrative  entity  of  China, 
246-247,  338;  calls  attention  of 
China  to  Russian  charges  of 
violation  of  neutrality,  264; 
suggests  Conference  of  the 
Powers,  268;  issues  Circular 
Note  of  Sept.  6,  i8gg,  329-331 ; 
announces  consent  of  each  na- 
tion, 331 ;  issues  second  Circular 
Note  of  July  3,  1900.  332;  pro- 
tests against  agreement  relating 
to  Russo-Chinese  Bank.  335- 
336. 

Hayashi,  Mr.,  Japanese  represen- 
tative at  Seoul,  48  flf.,  51,  75  n. 


Hei-lung-chang,    province    of,    30, 

36-         .    .         . 

Hideyoshi,  invasion  of  Korea,  39. 

Hipsang,  the,  torpedoed  by  Rus- 
sians, 143  n.,  261  n. 

Hitachi  il/aru,  the,  justifiable  sink- 
ing of,  by  Russians,  300. 

Holland,  purchase  of  transports 
in,  93- 

Holland,  Professor,  on  submarine 
mines,  129  n. ;  on  destruction  of 
prizes,  157  n. ;  on  language  of 
British  Neutrality  Proclamation, 
185  n. ;  on  vagueness  of  law 
governing  supply  of  coal  to 
belligerent  armed  vessels,  203; 
on  belligerent  and  neutral  rights 
on  the  high  seas,  244;  on  the 
binding  character  of  the  Hague 
Regulations,  272  n. ;  on  bom- 
bardment by  a  naval  force,  314- 
3^5.  n. 

Hospitals,     military-,     neutralized, 

273- 
Hospitals,  Red  Cross,  fired  upon, 

305-306  and  n.,  309  n. 
Hull,    Coroner's    inquest    at,    233; 

Board  of  Trade  inquiry  at,  233 

and  n. 

Ikhona,    sinking    of    the.    143    n., 

147  n. 
I  mi  via,  case  of  the,  172. 
Imperial   Order  of  Feb.   28.   1904, 

issued    by    Russia.    269-271  ;    of 

Feb.   9,    1905,    issued   bv   Japan, 

281-282. 
India,    British    interests    in,    358- 

359- 
Indemnity,   question   of,   346.    351, 

35^-355- 

Indo-China,   190,   193-197. 

Inhabitants  of  enemy  country, 
conditions  under  which  they 
may  be  considered  as  belliger- 
ents. 272;  life  and  property  of, 
to  be  respected,  273 ;  entitled  to 
notice  in  case  of  bombardment, 
274 ;  duty  of,  to  give  succor  to 
sick  and  wounded,  276:  not  to 
be  injured,  if  peaceable,  280. 
(See  also  Non-combatants.) 

Intent.  American  doctrine  of.  as 
applied  to  gifts  and  voluntary 
subscriptions,  86;  as  applied  to 


Z7^ 


INDEX 


warships,  87 ;  as  applied  to  First 
Rule  of  Treaty  of  Washington, 
98  n. ;  serious  objection  to,  99 
n. ;  criticism  of,  102-103,  109  n. ; 
complexity  of,  103 ;  difficult  to 
distinguish  between  belligerent 
and  commercial  intent,  102-103, 
107  n.,  109  and  n. ;  argument  of 
Bernard  on,  108-109  and  n. ;  as 
applied  to  contraband,   162  n. 

Institute  of  International  Law, 
adopts  principles  incorporated 
in  the  First  Rule  of  the  Treaty 
of  Washington,  99;  on  war  cor- 
respondents, 120-121 ;  seeks  to 
obtain  extension  of  three-mile 
limit,  133  n. ;  rules  of,  on  wireless 
telegraphy  and  submarine  mines, 
135  n. ;  on  destruction  of  prizes, 
158  n. ;  attempts  to  abolish  rela- 
tive contraband,  163-164  n. ; 
sanctions  doctrine  of  continuous 
voyage,  175  n. ;  on  prisoners  of 
war,  278  n. ;  on  flag  of  truce, 
279  n. ;  on  bombardment  by  a 
naval  force,  314  n. 

Instructions  for  the  Government 
of  the  Armies  of  United  States, 
on  war  correspondents,  120-121 
and  n. ;  on  prisoners  of  war,  278 
n. ;  on  flag  of  truce,  279  n. 

"Instructions"  to  Russian  Army, 
272-281 ;  compared  with  the 
Hague  Regulations,  272  n.,  275 
n.,  278  n.,  279  n.,  285  n.,  286  n., 
287  n. ;  compared  with  Geneva 
Convention,  o.'/Z-^T^  n.,  276  n. 

International  Agreements,  signed 
by  Russia,  270-271. 

International  Commissions  of  In- 
quiry, 224,  225,  231  and  n.,  232, 
240-241  and  n.  (See  also  North 
Sea  Commission.) 

International  ethics,  justice  of  war 
a  question  of,  67. 

International  morality,  new  stand- 
ards of,  set  up  by  Japan,  319, 
321,  323- 

International  Law,  questions  in : 
Effect  of  outbreak  of  war,  62 ; 
declaration  of  war,  whether 
necessary,  62-66 ;  effect  of 
breach  of  diplomatic  relations, 
66;  effect  of  ultimatum,  66;  jus- 
tice or  injustice  of  war,  67,  and 


67-68  n. ;  right  of  an  indepen- 
dent state  to  remain  neutral,  71 
and  n. ;  conditions  under  which 
a  treaty  made  under  duress  is 
null  and  void,  73-75 ;  force  and 
intimidation  permitted  means 
of  obtaining  redress  for  wrongs 
in,  73-74;  proper  treatment  of 
sailors  rescued  by  neutral  ves- 
sels, 75-77  and  n. ;  legality  or 
propriety  of  neutrals  permitting 
laying  of  submarine  cables,  79; 
question  of  legality  of  contribu- 
tions to  Red  Cross  Society  and 
purchase  of  Japanese  war-bonds, 
80-81,  84;  legality  of  foreign 
enlistment,  82-83,  and  n. ;  for- 
bids fitting  out,  arming,  or 
equipping  of  vessels  intended 
for  belligerent  service,  83-84, 
87 ;  legality  of  loans  by  neutral 
individuals,  84-85,  and  n. ;  gifts 
of  voluntary  subscriptions  to  a 
fund  raised  in  behalf  of  Greek 
revolutionists  held  to  be  con- 
trary to,  86;  of  what  use  is  a 
prohibition  in,  which  can  not  be 
made  effective,  86-87 ;  rules  of, 
not  devised  to  satisfy  demands 
of  logic,  87;  probably  forbids 
construction,  sale  and  exporta- 
tion of  warships,  87  n. ;  the  two 
twenty-four  rules  probably  in 
process  of  becoming  a  part  of, 
86,  and  n. ;  as  also  the  rules 
limiting  the  supply  of  coal  to 
neutral  vessels  in  neutral  ports, 
88  and  n.,  89  n. ;  contention  of 
Chancellor  von  Bvilow  that  the 
sale  of  vessels  of  a  private  firm 
to  a  foreign  state  or  to  a  private 
firm  is  admissible,  92,  no;  ques- 
tions of  legality  of  construction, 
sale,  and  exportation  by  neutrals 
of  warships,  submarines  and 
other  vessels  intended  for  bel- 
ligerent service  and  responsibil- 
ity of  neutrals  in  such  cases, 
96  ff . ;  direct  sale  of  war  vessels 
by  a  neutral  state  to  belligerent 
a  gross  breach  of,  97  and  n. ; 
prohibits  arming  and  equipping 
of  such  a  vessel,  as  also  aug- 
mentation of  the  force  of  a  war 
vessel  in  a  neutral  port,  97  n. ; 


INDEX 


373 


additions  to,  usually  the  result 
of  growth,  g8  n. ;  decisions  of 
prize  courts  an  important  source 
of,  98  n. ;  First  Rule  of  Treaty 
of  Washington  a  part  of,  97- 
99  and  n. ;  American  doctrine  of 
intent,  102-103 ;  meaning  of 
"due  diligence,"  104-105 ;  the 
limits  of  the  practical  should 
not  be  passed  in  framing  rules 
of,  107 ;  forbids  use  of  neutral 
territory  as  a  base  of  mditary 
operations,  112,  124  and  n. ;  sev- 
eral new  and  unprecedented 
questions  in,  115,  125;  in  deal- 
ing with,  it  is  necessary  to  fall 
back  upon  fundamental  princi- 
ples of,  or  to  seek  for  analogous 
cases  in,  115;  rights  and  status 
of  war  correspondents  and  the 
use  of  wireless  telegraphy,  115- 
125 ;  presumption  in  favor  of 
laws  of  peace  and  rights  of  neu- 
trals, 1 18-119  and  n.,  128;  the 
law  of  submarine  cables,  122- 
123  and  n. ;  reply  to  Russian  ar- 
gument that  everything  is  per- 
missible in  war  unless  expressly 
forbidden  by,  128;  opinions  of 
authorities  on  the  legality  of 
setting  adrift  submarine  mines 
on  the  high  seas  or  of  insecure- 
ly fastening  them  in  neutral 
waters.  I28r-i30  n. ;  the  three- 
mile  limit  should  be  enlarged, 
132-134  and  n. ;  Russian  seizures 
and  sinking  of  neutral  prizes 
raise  important  questions  in, 
136,  147-148;  confiscation  of 
mail  bags  contravenes,  139-140; 
status  of  Volunteer  Navy,  ac- 
cording to,  141-142.  148  and  n. ; 
sinking  of  the  Knight  Cotnman- 
der  justified  by  Russia  on  the 
ground  of,  146;  the  right  of 
visit  and  search  of  neutral  mer- 
chantmen, 148-153;  question  of 
convoy,  150-151  n. ;  right  of 
visit  and  search  as  applied  to 
mail  steamers,  151-15(1;  Russian 
Prize  Regulations  at  variance 
with,  158;  established  rule  of. 
with  respect  to  contraband,  165 
n. ;  substantive  principle  of.  can 
not  be  overridden  by  a  technical 


rule  of  prize  court,  180;  permits 
neutral  to  trade  in  contraband, 
186;  important  issues  respecting 
rights  and  privileges  of  belliger- 
ent armed  vessels  in  neutral 
ports  and  waters  raised  during 
the  war.  188;  twenty-four-hour 
rule,  189,  212—216;  voyage  of 
Baltic  Fleet  of  interest  to  stu- 
dents of,  190 ;  question  of  sup- 
ply of  coal  to  belligerent  war- 
ships in  neutral  ports  and 
waters,  190-198,  212-216;  the 
spirit  and  letter  of,  violated  by 
France  in  permitting  the  free 
use  of  her  territorial  waters  to 
Russia,  198  and  n. ;  general  rule 
as  to  supply  of  coal,  according 
to,  198;  speaks  with  uncertain 
voice  in  respect  to  supply  of 
coal  to  belligerent  warships,  203; 
President  Roosevelt's  decision 
in  case  of  the  Russian  cruisers 
interned  at  Manila  characterized 
as  a  new  principle  of.  210;  cus- 
tom hitherto  governing  rights 
of  belligerent  warships  in  neu- 
tral ports,  210-212;  binds  neutral 
governments  to  a  strict  and  im- 
partial neutrality,  214;  a  new 
chapter  of,  has  been  written, 
216;  a  new  method'for  fixing  re- 
sponsibility for  violations  of, 
introduced  by  North  Sea  Com- 
mission, 240-241 ;  rule  of,  re- 
specting belligerent  and  neutral 
rights  on  the  hi^di  seas,  244- 
245 ;  violation  of  Chinese  neu- 
trality a  breach  of,  249;  law  of, 
in  respect  to  "double  or  am- 
biguous sovereignty,"  249-251  ; 
no  imperfect  neutrality  in.  263; 
wireless  telegraphy  on  neutral 
soil,  raises  new  question  in,  266; 
a  series  of  new  precedents  cre- 
ated, 267;  Russian  and  Japanese 
Instructions  in  conformity  with, 
294;  a  belligerent  has  the  right 
to  expel  enemy  subjects  in  ex- 
treme cases.  298-290 ;  prohibi- 
tions of.  301  ;  should  condemn 
naval  bombardmont  as  well  as 
land.  307  n. ;  forbids  enlistment 
of  savages.  310;  cases  not  in- 
cluded   in    the    Hague    Regula- 


374 


INDEX 


tions  remain  under  the  protec- 
tion of,  312;  the  bombardment 
of  undefended  coast  towns  by  a 
naval  force  not  in  conformity 
with  the  best  practice  of,  316; 
Russian  and  Japanese  rules  re- 
lating to  prisoners  in  conform- 
ity with,  318-319;  Japan  has  set 
up  new  standards  of,  319,  32i, 
323 ;  Japan  sends  advisors  on, 
with  each  army  corps,  324; 
Treaty  of  Portsmouth  important 
from  the  standpoint  of,  346- 
347 ;  does  not  forbid  surrender 
of  interned  war-ships,  352  n. 

International  Law,  alleged  viola- 
tions of:  The  Japanese  attack 
upon  the  Russian  fleets  at  Che- 
mulpo and  Port  Arthur  on  Feb. 
8  and  9,  1904,  66  ff. ;  violation  of 
Korean  neutrality,  70  fif. ;  charges 
against  Germany  for  sale  of  ves- 
sels belonging  to  her  Auxiliary 
Navy  and  the  exportation  over- 
land of  torpedo-craft  to  Russian 
territory,  91-93,  iio-iii;  pur- 
chase o)f  vessels  in  England, 
Holland,  etc.,  93-94;  construc- 
tion and  sale  of  submarines  in 
United  States  and  Great  Britain, 
94-96;  cases  of  the  Protector 
and  Fulton,  94-96,  112-114; 
case  of  the  Caroline,  96;  the 
use  of  wireless  telegraphy  on  the 
high  seas  by  the  Haimun,  117- 
118  and  n. ;  the  laying  of  float- 
ing mines  on  the  high  seas,  125- 
127  and  notes ;  Russian  seizures 
of  neutral  merchant-men  and 
sinking  of  neutral  prizes,  136, 
138-147,  151-153,  156-159;  con- 
fiscation of  mail  bags  of  the 
Prinz  Heinrich,  139-140,  155- 
156;  case  of  the  Malacca,  139- 
141,  151-153;  case  of  the  Hip- 
sang,  143  n. ;  case  of  the  Knight 
Commander,  144-147,  156-160; 
Russia  violates  law  of  contra- 
band, by  ignoring  distinction  be- 
tween absolute  and  conditional 
contraband,  166-170;  in  the  case 
of  the  Allanton,  171-173;  in  the 
case  of  the  Knight  Commander, 
173-174;  in  the  cases  of  the 
Arabia    and    Calchas,    174-182; 


Russia  guilty  of  a  violation  of 
International  Postal  Treaty  in 
the  cases  of  the  Calchas  and 
Cincinnati,  lyj  n. ;  Russian  vio- 
lation of  the  neutrality  of  Egypt, 
189;  charges  against  France  for 
permitting  use  of  her  ports  and 
territorial  waters,  189-198;  Rus- 
sian attack  on  British  fishing 
fleet  or  North  Sea  Incident,  217- 
246;  alleged  violations  of  Chi- 
nese Neutrality,  252-269  (see 
China  and  Neutrality)  ;  Russian 
sinking  of  Japanese  vessels,  299- 
301 ;  violations  of  Hague  and 
Geneva  Conventions,  301-307 
and  notes ;  use  of  Chinese  cloth- 
ing by  Russian  troops,  307-308 ; 
charges  of  mutilation  of  the 
dead  and  wounded,  308-309  and 
notes ;  enlistment  of  convicts, 
309-311;  bombardment  of  unde- 
fended coast  towns,  311-316;  al- 
leged use  of  lyddite  by  the  Jap- 
anese and  of  dumdum  bullets  by 
the  Russians,  316-317;  failure  of 
Russia  to  furnish  Japanese  with 
information  regarding  prisoners, 
322  and  n. ;  general  conclusion 
concerning,  323-324. 

International  Postal  Convention, 
violated  by  Russia,  177  n. 

Internment  of  belligerent  warships 
at  neutral  ports :  The  Mandjur, 
198-189,  259,  367;  the  Czare- 
vitch, at  Tsing-tajn,  204;  the 
Diana,  at  Saigon,  205 ;  the  Ask- 
old  and  Grosovoi,  at  Shanghai, 
205-206;  the  Lena,  at  San  Fran- 
cisco, 207-208  and  n. ;  the  three 
Russian  cruisers  at  Manila,  209- 
210,  215  n. ;  the  Terek,  at  Bata- 
via,  210  n. ;  views  of  Hall  on, 
211;  a  series  of  new  precedents 
in  favor  of,  215,  267. 

Internment  of  belligerent  troops 
on  land,  y6,  211,  216,  267. 

Intervention  of  Russia  in  Chino- 
Japanese  War,  7,  10,  327. 

Italy,  limits  stay  of  belligerent 
warships  in  neutral  ports  to 
twenty-four  hours,  88  n. ;  ac- 
cepts Hay  Note,  247  n. ;  replies 
to  Hay  Circular  Note  of  1899, 
300  and  n. 


INDEX 


375 


Ito,  Count,  negotiates  Convention 
of  Tien-tsin,  41 ;  views  of,  41- 
42  n. ;  negotiates  convention 
with  Korea,  75  n. 

Japan,  interests  of,  in  Cliina,  2,  26, 
36,  41-42  n. ;  recognizes  inde- 
pendence of  Korea,  7,  43,  47,  48 ; 
retrocedes  Liao-timg  Peninsula 
to  China,  8;  protests  against 
the  Alexieff-Tseng  Agreement, 
19,  334;  protests  against  the 
Lamsdorff  -  Yang  -  yu  Conven- 
tion, 22,  335;  protests  against 
demands  of  Russia  regarding 
Russo-Chinese  Bank,  24,  26;  in- 
terests of,  in  Korea,  3,  26,  27,  41- 
42  n.,  46,  359;  enters  into  defen- 
sive alliance  with  Great  Britain, 
26-29,  2,2,^2>27;  protests  against 
Russia's  seven  new  demands,  z'^, 
337;  relations  with  Korea,  37- 
S2.  (see  Korea)  ;  enters  into  ne- 
gotiations with  Russia,  53-60, 
68;  instigates  China  to  refuse 
Russian  demands,  57;  accused  by- 
Russia  of  treachery,  etc.,  66  ff. ; 
breaks  ofif  diplomatic  relations 
with  Russia,  61,  68-70;  attack 
upon  the  Russian  fleets  justified, 
68-70;  reserves  right  to  take  in- 
dependent action,  69-70;  violates 
Korean  neutrality,  70  flF. ;  makes 
first  aggressive  movement,  70 
n. ;  accused  of  violation  of  In- 
ternational Law,  70-71 ;  replies 
to  Russian  note,  71-72;  impossi- 
ble for,  to  respect  Korean  neu- 
trality, 72;  negotiates  treaty 
with  Korea,  guaranteeing  !at- 
ter's  independence  and  integrity, 
73-75 ;  extinguishes  indepen- 
dence of  Korea,  75  n.,  356;  de- 
mands surrender  of  rescued 
Russian  sailors,  76;  consents  to 
their  release  on  parole,  76;  ap- 
plies to  the  United  States  for 
permission  to  construct  subma- 
rine cable,  78;  orders  battleships 
in  England,  93;  in  competition 
with  Russia  for  purchase  of 
transports  in  Holland  and  Bel- 
gium, 93;  agents  of,  negotiate 
for  purchase  of  cruisers  in 
South     America,     94     and     n. ; 


agents  of,  order  torpedo-craft  in 
the   United   States,  94  fl^. ;   fails 
to  call  attention  of  our  Govern- 
ment   to    fact    that    submarines 
were    being    built,    113    and    n. ; 
attempts   to   control   movements 
of  the  Haimun,  118  n. ;  busy  re- 
moving  Russian    mines,    126  n., 
127   n. ;    practice   of,    in    respect 
to  destruction  of  prizes,  158  n. ; 
publishes    a    list    of   contraband, 
160-161;   recognizes   doctrine  of 
conditional      contraband,      161 ; 
threatens      force      in      case     of 
Mandjtir,  188;  exchanges  friend- 
ly communications  with  France. 
189;    complains    of    conduct    of 
France  in  permitting  use  of  her 
territorial    waters,     190;    makes 
representations  to  Spain,  191  n. ; 
growing  indignation   in,  due  to 
prolonged  stay  of  Baltic  Fleet  in 
French   waters,   192-194;   makes 
representations    at    Paris,     193- 
194;    makes   further   representa- 
tions at  Paris,  194;  statement  of 
the  case  of,    194-195;   threatens 
to  capture  the  Askold  and  Gro- 
sovoiat  Shanghai,  205  ;  addresses 
note  to  the  Powers,  206;  insists 
on   same  procedure   as   in   cases 
of  the  Russian  vessels  at  Tsing- 
tau,  207  n. ;  claims  that  Russians 
violated    parole,    207    n. ;    copies 
British  restrictions  upon  liberty 
of  belligerent  warships   in  neu- 
tral   ports,    213    n. ;    conditional 
acceptance    by.    of    Hay    Note, 
247-248;  complains  of  numerous 
violations  of  Chinese  neutrality 
by  Russia,  259;  attempts  to  jus- 
tify  seizure   of   the   Ryrsliifrliii, 
261 ;  charges  China  with  failure 
to    observe    neutrality.    261    and 
n.;  refuses  to  offer  apology  for 
action   of  Rycsliitchii,   263 ;    de- 
clares  Russian    charges   without 
foundation,    264;    denies    use   of 
Mia-Tao  islands  as  a  naval  base, 
265 ;  charges  of.  against  Russia, 
265-267;    obsen-es    all    the    re- 
quirements  of  the   Hague   Con- 
vention. 278  n. ;  issues   Imperial 
Ordinance     exempting     Russian 
merchantmen    from    capture    in 


376 


INDEX 


certain  cases,  281-282;  issues  in- 
struction to  Government  of  Tai- 
wan, 282-283 ;  addresses  a  note 
to  school  teachers  asking  them 
not  to  encourage  jingoism,  283; 
issues  instructions  to  heads  of 
reHgious  sects,  283-284 ;  issues 
list  of  "Regulations  Relative  to 
Treatment  of  Prisoners  of 
War,"  284-285  ;  issues  additional 
instructions,  285-287,  285  n. ;  is- 
sues Imperial  Ordinance  relative 
to  Bureau  of  Information  for 
prisoners  of  war,  289-290 ;  issues 
"Regulations"  relative  to  burial 
of  the  dead,  291-294;  a  signa- 
tory of  Hague  Convention,  295 ; 
complains  of  hardships  suffered 
by  Japanese  in  Manchuria  and 
Siberia,  298;  requests  good  of- 
fices of  the  United  States  in  be- 
half of  destitute  Japanese  sub- 
jects, 298;  conduct  of,  contrasted 
with  that  of  Russia,  301  n. ;  ex- 
plains firing  upon  Red  Cross 
train,  302 ;  accu'Sed  of  violating 
Hague  and  Geneva  Conventions, 
302,  305 ;  protests  against  Rus- 
sian use  of  Chinese  clothing, 
307 ;  accuses  Russians  of  muti- 
lation of  dead  and  wounded, 
308-309  and  n. ;  complains  of 
Russian  enlistment  of  convicts, 
309;  bombards  Vladivostok,  311 ; 
accuses  Russia  of  using  dum- 
dum bullets,  317  and  n. ;  charges 
against,  of  using  lyddite  shells, 
316;  sets  up  new  standards  of 
International  Law,  319,  321,  323; 
establishes  Bureau  of  Informa- 
tion, 319-320;  kind  treatment  of 
sick,  wounded  and  prisoners  by, 
319-322;  conduct  of,  during  the 
war,  324;  complains  of  failure 
of  Russia  to  furnish  informa- 
tion concerning  prisoners,  322 
and  n. ;  cooperates  with  England 
and  the  United  States  in  the 
Far  East,  325,  333-335  and  n. ; 
approves  British  lease  of  Wei- 
hai-wei,  328;  replies  to  Hay  Cir- 
cular Note  of  September  6,  1899, 
330;  concludes  commercial 
treaty  with  China,  338  n. ;  para- 


mount interests  of,  in  Korea,  ac- 

.  knowledged  by  Russia,  341 ; 
agrees  to  evacuate  Manchuria, 
341-342,  345,  355;  sends  favor- 
able reply  to  President  Roose- 
velt's Note  suggesting  peace  ne- 
gotiations, 349;  proposes  twelve 
conditions  of  peace,  350-351; 
withdraws  demand  for  indem- 
nity, 355 ;  summary  of  gains  of, 
at  Portsmouth,  355-356;  con- 
cludes offensive  and  defensive 
alliance  with  Great  Britain,  357; 
recognizes  special  interests  of 
Great  Britain  in  India,  358-359. 

Jefferson,  on  right  of  neutrals  to 
trade   in   contraband,    185-186. 

Jcmtchug,  interned  at  Manila,  209- 
210. 

Jibutil,  coaling  at,  189,  194,  195. 

Kaimimura,  Vice-Admiral,  hu- 
mane conduct  of,  301  n. 

Kamchatka,  the,  fires  upon  the 
Aldebarcn,  218  n.,  223  n.,  238  n. 

Kamranh  Bay,  Baltic  Fleet  at, 
190,  193,  194,  196. 

Kaneko,  Baron,  interviews  with 
President  Roosevelt,  354-355  n. 

Kennan,  George,  on  Japan's  treat- 
ment of  the  wounded,  321. 

Kiao-chau,  12,  204;  leased  to  Ger- 
many,  15,  327. 

Ktushiu  Maru,  the,  justifiable 
sinking  of,  by  Russians,  300- 
301. 

Kirin,  province  of,  30,  34. 

Knight  Commander,  case  of  the, 
144-147,  156-159,  173-174  n.,  339- 

Korictz,  the,  accused  of  firing  the 
first  shot  in  the  war,  70  n. ; 
crew  of,  rescued  at  Chemulpo, 
75,  77  n- ;  crew  of,  violates  pa- 
role, 207  n. 

Korea,  independence  and  territo- 
rial integrity  of,  7,  26,  28,  29  n., 
2,7,  40,  43,  47-48,  53-56,  71- 
75.  356;  Russian  troops  in,  34; 
encroachments  of  Russia  in,  2i^; 
geographical  location  of,  27 'y 
open  door  policy  in,  41,  54,  56; 
treaties  of,  with  foreign  Powers, 
41 ;  insurrections  of  1882  and 
of  1884,  41 ;  insurrection  of  1894 


INDEX 


377 


results  in  Chino-Japanese  War, 
43;   coup   d'etat  of   1895,  43-44; 
murder  of  Queen,  44;   uprising 
in,  44;   independence  of,  recog- 
nized by  Japan  and  Russia,  47- 
48 ;  rivalry  of  Russian  and  Japan 
in,  48   ff. ;    anarchy   in,   51;   ex- 
cluded from  application  of  Hay 
Note,  346  n. 
Korea,   relations   of,   with    China: 
Chinese     claim     of     suzerainty 
over,    37   and    n.,   39;    effect   of 
Mongol     conquest     on,     38-39; 
ascendency  of  Chinese  interests 
and    influence    in,   39;    first    and 
second  Chinese  and  Japanese  in- 
tervention in,  41  ;  third  Japanese 
and  Chinese  intervention  in,  re- 
sults   in    Chino-Japanese    War, 
43;  rivalry  of  Russia  and  Japan 
in,  48  flf. 
Korea,    relations   of,   with   Japan : 
Interests  of  Japan  in,   I,  3,  26, 
37,  41-42  n.,  46.  52-55,  359;  tem- 
porary subjugation  of,  by  Japan 
in  third  century,  A.  D.  37;   re- 
garded as  a  tributary  state,  37; 
tribute  missions  to,  3.8-39;  com- 
merce and  immigration,  38;  ef- 
fects of  Mongol  conquest  of,  38; 
invasion  of  Hideyoshi,  39;  reas- 
sertion  of  Japanese  claims  of  su- 
zerainty over,  40,  43 ;  Japan  rec- 
ognizes    independence     of,     40; 
Chinese  and  Japanese  interven- 
tion in,  41 ;  Japanese  attempts  at 
reform    in,    43;    coup    d'etat    oi 
1895,   43 ;    coimter-plot    to    seize 
King    and    Queen,    44;    Memo- 
randum   of    May    14,    1896,    re- 
garding. 45  and  n.;  Yamagata- 
LobanofT      Protocol      regarding, 
45-46;     Nishi- Rosen     Protocol 
regarding,     47-48;     rivalry     of 
Russia    and    Japan    in,    48    flF. ; 
ultimatum  of  Mr.  Hayashi,  51 ; 
negotiations    regarding,^  52    fif. ; 
increased    Russian    activity    in, 
56;    neutral   zone   proposed.    56- 
50;  alleged  violation  of  neutral- 
itv  of.  by  Japan.  70  flF. ;  is  with- 
in Japanese  "sphere  of  influence" 
and  one  of  the  main  objects  of 
the  war,  72;  the  Powers  warned 
that   Japan's  acts   in   Korea   are 


invalid,    72;    independence    and 
integrity      of,      guaranteed      by 
Japan,   73-74;   independence   of, 
extinguished    by    Japan,    75    n., 
356;    Great    Britain    recognizes 
Japan's   paramount   interests   in, 
358-359- 
Korea,  relations  of,  with  Russia : 
Russia     tries     to     obtain     Port 
Hamilton,    42;     agrees    not    to 
occupy     Korean     territory,     43; 
concludes  a  commercial  conven- 
tion with,  43 ;  obtains  control  of 
Korean    Government,    44;    brief 
period  of  Russian  ascendency  in, 
44-45;  obtains  timber  and  min- 
ing concessions  in,  45 ;   Memo- 
randum of  May  14.  1896,  regard- 
ing, 45  and  n. ;  Yamagata-Lob- 
anofT    Protocol     regarding,    45- 
46;  violation  of,  by  Russia,  46- 
47 ;  Russia  tries  to  obtain  control 
of    Korean    army    and    finances, 
46;  dismissal  and  restoration  to 
office,  of  Mr.  Brown,  46-47 ;  visit 
of   British  men-of-war,  47;   the 
Nishi-Rosen     Protocol     regard- 
ing, 47-48 ;  independence  of,  rec- 
ognized  by    Russia,   47;    rivalry 
of  Russia  and  Japan  in,  48  fif. ; 
Russia  attempts  to  lease  Masam- 
po,  49;  to  obtain  a  foothold  on 
Korean     territory,     50-51;     at- 
tempts   to    obtain    extension    of 
Yong-am-po    lease.    51 ;    Russia 
acknowledges       Japan's       para- 
mount   interests    in,    341,    355; 
Russian  subjects  in,  341 ;  Japan 
demands   recognition  by   Russia 
of   her    paramount    interests    in, 
350. 
Komura,  Baron,  negotiations  with 
Russia  prior  to  war,   52-53,   57, 
58,   59;    replies   to  Russian   pro- 
test.  306;    peace   plenipotentiary 
at  Portsmouth.  349.  352,  355. 
Krabri,    the,    detains    the    Osiris, 

139  n.  .   . 

Kurino.  Mr.,  the  Japanese  Mmis- 
ter  at  St.  Petersburg,  52,  53.  59, 

69.  70. 
Kuropatkin.    General,    on    occupa- 
tion   of    Manchuria,    18    n. ;    on 
Japanese  oliscrvance  of  the  rules 
of  war,  2>^:s-?<2-\- 


378 


INDEX 


Kurile     Islands,     exchanged     for 

Sakhalin,  6. 
Kwang  -  Chau     Bay,      leased     to 

France,  i6,  328. 

Lamsdorff,  Count,  166  n.,  181,  219, 
222  n.,  232  n. ;  on  occupation  of 
Manchuria,  18  n. ;  denies  Alex- 
ieff-Tseng  Agreement,  19;  ad- 
mits modus  Vivendi,  19-20;  on 
evacuation  of  Manchuria,  20; 
agreement  of,  with  Yang-yu,  21- 
22 ;  reply  of,  to  Hay,  25 ;  assur- 
ances by,  25 ;  denies  Russian  de- 
mands, 34  n. ;  negotiations  with 
Japan,  53-59;  Circular  Note  to 
the  Powers  (Feb.  22,  1904),  67, 
70-71 ;  warns  Powers  that 
Japan's  acts  in  Korea  are  in- 
valid, 72 ;  requests  British  Gov- 
ernment to  convey  orders  of  the 
Russian  Government,  142  n. ;  or- 
ders captains  of  Russian  cruis- 
ers to  abstain  from  sinking  neu- 
tral vessels,  143  n.,  182  and  n. ; 
reports  decision'  in  case  of  the 
Arabia,  176  n. ;  gives  assurances 
to  Gi-eat  Britain,  183  n. ;  nego- 
tiations of,  respecting  North  Sea 
Incident,  219  n.,  222,  225,  229- 
231. 

Lamsdorff- Yang-yu  Convention, 
terms  of,  21-22,  335. 

Lansdowne,  Lord,  ii7n.,  142  n.,  144 
n.,  145  n.,  197,  232,  335  n. ;  com- 
munication of,  regarding  Anglo- 
Japanese  Agreement,  27-28 ;  on 
contraband,  179;  on  chartering 
of  vessels  for  trade  in  coal,  203- 
204  and  n. ;  negotiations  of,  re- 
specting the  North  Sea  Incident, 
219-221,  224-225,  228-230,  238; 
on  British  policy  in  China,  338  n. 

Lawrence,  T.  J.,  on  declarations 
of  war,  64  n. ;  on  the  validity  of 
treaties  made  under  duress,  74- 
75 ;  on  enlistment,  83 ;  on  the  le- 
gality of  loans,  85 ;  on  legality 
of  voluntary  gifts  and  subscrip- 
tions, 86;  on  First  Rule  of 
Treaty  of  Washington,  98  n. ; 
on  American  doctrine  of  intent, 
102;  on  "due  diligence,"  105; 
on  the  case  of  the  Haimun,  116 
n. ;  on  fundamental  principle  of 


law  of  neutrality,  118  and  n. ; 
on  status  of  war  correspond- 
ents, 120  n. ;  on  wireless  teleg- 
raphy, 123  n.,  124  n. ;  on  the  case 
of  the  Hatsiise,  126  n. ;  on  sub- 
marine mines,  129  n. ;  on  the 
right  of  search  of  mail  steamers, 
154  and  n. ;  on  the  destruction 
of  prizes,  156  n. ;  on  the  case  of 
the  Allanton,  171  n. ;  on  the  case 
of  the  Nancy,  172  n. ;  on  the 
Knight  Commander,  174  n. ;  on 
right  of  neutrals  to  trade  in  con- 
traband, 184,  187;  on  violation 
of  neutrality  of  Egypt,  189 ;  on 
increasing  importance  of  coal  in 
naval  warfare,  201  and  n. ;  on 
distinction  between  hostile  and 
peaceful  use  of  coal,  201-202; 
on  right  of  asylum,  210;  on 
British  neutrality  regulations, 
213  n. ;  on  repairs  permitted  to 
belligerent  warships  in  neutral 
ports,  215  and  n. ;  on  case  of  the 
General  Armstrong,  263  n. ;  on 
"Days  of  Grace,"  296  and  297 
n. ;  on  the  sinking  of  Japanese 
merchantmen,  300  and  n. ;  justi- 
fies action  of  Japanese  in  firing 
upon  Red  Cross  train,  302;  on 
bombardment,  314  n. 

Laws  of  Warfare  (see  Warfare). 

Leases  in  China,  15-16,  327-328, 
330  and  n.,  339;  of  the  Bay  of 
Kiao-chau  by  Germany,  15,  327; 
of  Port  Arthur  by  Russia,  15, 
327;  of  Wei-hai-wei  by  Great 
Britain,  15,  328;  of  the  Kwang- 
chau  Bay  by  France,  16,  328. 

Lena,  the,  interned  at  San  Fran- 
cisco, 207-208  and  n. 

Lessar,  M.,  23-24,  32-33,  57,  188  n. 

Liao  River,  30,  33,  34,  36;  contro- 
versy regarding  neutrality  of  re- 
gion west  of,  255-258,  265-267. 

Liao-tung  Peninsula,  7-9,  341,  342, 
345,  351,  356. 

Li-Hung  Chang,  appeals  for  inter- 
vention against  Japan,  7 ;  favors 
"open  door"  in  Korea,  40;  nego- 
tiates Convention  of  Tien-tsin, 
41. 

Loans,  movement  in  United  States 
to  contribute  to  Japanese  war 
fund,  80-81 ;  not  a  violation   of 


INDEX 


379 


International  Law,  8i ;  Japanese 
loans  floated  in  England  and 
United  States,  8i ;  communica- 
tion from  Secretary  Hay  to  Mr. 
Takahira  regarding,  8i ;  Russian 
loans  in  France,  82;  legality  of, 
denied  by  some  publicists,  84- 
85  and  n.;  not  an  infringement 
of  neutrality  if  entered  into 
with  commercial  views,  86  n. 

Loomis,  Secretary,  statement  of, 
regarding  the  Fulton,  95. 

Lyddite,  Japanese  accused  of  us- 
ing shells   charged   with,   316. 

Madagascar,  Baltic  Fleet  at,  191, 
192,  193. 

Mail  Steamers,  searched  by  Rus- 
sia, 139;  right  of  search  of,  139, 
153-156;  case  of  the  Prins  Hein- 
rich,  139,  155-156;  cases  of  the 
Calchas  and  Cincinnati,  177  n. 

Malacca,  case  of  the,  139-142,  151- 
153  and  n.,  339. 

Manchuria,  Japanese  interests  in, 
3.  7.  52,  56;  interests  of  Russia 
in,  3  and  n.,  54-55  and  n.,  56; 
railways  in,  10-16,  18,  21,  256 
n.,  327,  335,  3-P-343,  345,  35 1, 
355 ;  occupied  by  Russia,  16  ff., 
333 ;  Russian  Circular  Note  re- 
garding, pp.  17-18;  modus  Vi- 
vendi relating  to,  18  n.,  19-20; 
Count  Lamsdorff  on  evacuation 
of,  20;  to  be  restored  to  China, 
21 ;  AlexicfF-Tscng  Agreement 
regarding,  18-19,  334;  the  Lams- 
dorff-Yang-yu  Convention  re- 
garding, 21-22,  335 ;  Russia  on 
evacuation  of,  22-23 ;  Russian 
proposals  to  evacuate,  23-24; 
Russian  demands  concerning, 
24;  Convention  of  Evacuation 
regarding,  29-32,  337;  difficult  to 
fulfill,  32-33 ;  evacuation  of  re- 
gion west  of  the  Liao  River,  33, 
256;  failure  to  evacuate  the  rest 
of,  34,  36,  256  and  n.,  337;  Rus- 
sia's seven  new  demands  regard- 
ing, 34-35 ;  six  fresh  demands 
by  Russia  relating  to,  36  n.,  57; 
the  right  of  foreign  settlements 
in.  36  n.,  58  n.,  338  n. ;  aggres- 
sive and  exclusive  policy  of 
Russia   in,   36;   negotiations  be- 


tween Japan  and  Russia  con- 
cerning, 52  fF. ;  increasing  Rus- 
sian activity  in,  56;  excluded 
from  application  of  Hay  Note, 
246  n.,  249,  253,  258,  265 ;  inter- 
national status  of,  249-251,  253; 
Admiral  Alexieff's  proclamation 
to  inhabitants  of,  251-252;  ac- 
tivity of  Chinese  troops  along 
frontier  of,  254-255  and  n. ;  Chi- 
nese bandits  in,  252,  254-255 ; 
neutrality  of  that  portion  of, 
west  of  the  Liao  River,  255-258; 
Japanese  subjects  suffer  in,  298; 
burning  of  Chinese  dead  in,  304 ; 
use  of  Chinese  clothing  in,  307; 
use  of  dumdum  bullets  in,  317; 
German  interests  in,  334  n. ; 
opening  of  Mukden  and  Antung 
in,  to  trade,  338  n. ;  Japan  and 
Russia  agree  to  evacuate,  341- 
342,  345 ;  Japanese  proposals  re- 
garding evacuation  of,  350-351 ; 
results  of,  356. 

Manchurian  Railway  (see  Chinese 
Eastern  Raih>.'ay). 

Mandjur,  the,  interned  at  Shang- 
hai, 188-189,  206-207  n.,  259,  261, 
267. 

Manila,  79,  196;  the  Russian  cruis- 
ers interned  at.  209,  215  n. 

Maria,  case  of  the,  149,  150  n. 

Marianne  Flora,  case  of  the,  242  n. 

Marine  League  (see  Three-mile 
limit.) 

Marshall.  Chief  Justice,  on  privi- 
leges of  public  ships  in  neutral 
ports,  262. 

Martens.  Professor,  178,  182.  230, 
271-272  n.,  323,  349  n..  353-354  n. 

Masampo,  37  n. ;  attempts  of  Rus- 
sia to  lease,  49. 

Matilda,  seizure  of  the,  137  n. 

McCormick,  American  ambassa- 
dor at  St.  Petersburg.  165  n., 
176  n.,  322  n. 

McKinley,  President.  Proclama- 
tion of  (April  26,  1898),  296- 
297  and  n. 

Mediation,  Hague  Conference  on, 

347- 
Mediterranean     fleet.     Russian, 
search  and  detention  of  neutral 
merchantmen    by.    in    Red    Sea, 
136-138;  projected  voyage  of,  to 


38o 


INDEX 


the  Far  East,  137;  return  of,  to 
the  BaUic,  138;  stay  of,  at  Jibu- 
til,  189. 

Memorandum  of  Russian  and  Jap- 
anese Ministers  at  Seoul,  terms 
of,  45  and  n. 

Merchantmen,  neutral,  sale  of,  to 
belligerents  not  illegal,  93,  no; 
Russian  seizures  of,  136,  138- 
139,  143-144.  151-153;  search 
and  detention  of,  in  Red  Sea, 
136-137;  sinking  of,  143-147, 
156-159;  sinking  of  the  Thea 
and  Knight  Commander,  144- 
147,  156-159;  Russia  instructs 
naval  commander  not  to  sink, 
143  n.,  146;  vessels  of  Volunteer 
Fleet  in  the  guise  of,  138,  151 ; 
right  of  visit  and  search  of,  148- 
153 ;  can  not  exercise  right  of 
visit  and  search,  143-147,  156- 
159;  Great  Britain  protests 
against  sinking  of,  144-145,  178. 

Merchantmen,  Japanese,  sinking 
of,  by  Russians,  299-301. 

Merchantmen,  enemy,  in  belliger- 
ent ports  at  outbreak  of  war, 
Russian  rules  relating  to,  269, 
295-296;  Japanese  rules  relat- 
ing to,  281-282,  295-296;  recent 
practice  respecting,  296-297  and 
n. 

Meteor,  case  of  the,  100  n.,  loi, 
107. 

Mia-Tao  Islands,  use  of,  by  the 
Japanese,  258-259,  265,  266. 

Mikado,  issues  Imperial  Rescript 
announcing  retrocession  of  the 
Liao-tung  Peninsula,  8;  decides 
in  favor  of  peace,  355. 

Militia,  conditions  under  which, 
may  be  considered  as  belliger- 
ents, 272;  must  wear  distinctive 
emblem,  272,  307-308. 

Military  occupation.  Hall  on,  250- 
251 ;  rights  of,  253,  275. 

Mines,  submarine,  set  adrift  on  the 
high  seas  or  insecurely  fastened 
in  territorial  waters  by  Russia, 
125-126  and  n. ;  Japan  also  lays, 

126  n. ;  United  States  institutes 
an  investigation  regarding,   126- 

127  n. ;  Conger  reports  regard- 
ing, 127  n. ;  distribution  of,  127 
n. ;   the   laying   of,   on  the   high 


seas  a  gross  violation  of  the 
laws  of  war,  128-130  and  n. ;  li- 
cense of  practice  respecting  lay- 
ing of,  130  and  n. ;  states  a  right 
to  employ,  inside  the  three-mile 
limit,  130;  conditions  under 
which  they  may  probably  be 
used  on  high  seas,  131  and  n. ; 
rules  of  Institute  of  Interna- 
tional law  relating  to,  135  n. ; 
questions  relating  to,  should  be 
referred  to  next  Hague  Confer- 
ence, 134;  tentative  statement  of 
the  law  of,  134  and  n. 

Mischenko,  General,  raid  of,  266; 
reports  effects  of  lyddite  shells, 
316  n. 

Miura,  Japanese  Minister  at  Seoul, 
44  and  n. 

Modus  Vivendi  relating  to  Man- 
churia, 18  n.,  19-20. 

Mongolia,  22,  32,  34,  35,  246  n. 

Moore,  John  Bassett,  on  floating 
mines,  129  n. ;  on  report  of 
North  Sea  Commission,  239-240. 

Movables,  of  enemy  state,  273 ;  of 
individuals,  274. 

Mukden,  city  of,  sham  evacua- 
tion of,  34  n.,  256  and  n. ;  reoc- 
cupied,  36  and  n. ;  opened  to 
trade,  338  and  n. ;  battle  of,  347. 

Mukden,  province  of,  30,  23>  34- 

Myer,  American  Ambassador  at 
St.  Petersburg,  354  n. 

Nakonoura  Maru,  the,  justifiable 
sinking  of,  by  Russians,  299- 
300  n. 

Nancy,  case  of  the,  150  n.,  172  n. 

Naval  War  Code  of  United  States, 
297  n.;  on  convoy,  151  n. ;  on 
search  of  mail  steamers,  153;  on 
destruction  of  prizes,  158  n. ;  on 
contraband,  169;  on  naval  bom- 
bardment, 313-315  n. 

Negotiations,  leading  up  to  Rus- 
so-Japanese War,  52-60,  68  and 
n. ;  leading  up  to  North  Sea 
Commission,  225-231 ;  summary 
of,  by  Premier  Balfour,  226; 
leading  up  to  Treaty  of  Ports- 
mouth, 346-355 ;  the  twelve  Jap- 
anese conditions  of  peace,  350- 
351 ;  controversy  regarding  ces- 


INDEX 


381 


sion  of  Sakhalin  and  indemnity, 
352-355- 

Netherlands,  the,  limits  stay  of 
belligerent  warships  in  neutral 
waters  to  twenty-four  hours,  88- 
89  n. ;  interns  the  Terek  at  Ba- 
tavia,  210  n. ;  copies  British  re- 
strictions upon  belligerent  war- 
ships in  neutral  ports,  213  n. ; 
accepts  Hay  Note,  n. 

Neutrality,  alleged  violation  of,  by 
Japan  in  Korea,  70-75 ;  by  Ger- 
many in  permitting  sale  and  de- 
livery to  Russia  of  vessels  be- 
longing to  her  Auxiliary  Navy, 
etc.,  91,  no;  by  United  States 
in  permitting  construction  and 
exportation  of  torpedo  boats,  94- 
95,  112-114;  by  Great  Britain  in 
permitting  delivery  of  the  Caro- 
line, 96  and  n. ;  by  Russia  and 
Japan  in  laying  submarine 
mines,  125-127  and  notes;  by 
Russia  in  seizure  and  sinking  of 
neutral  vessels,  136-159;  by  Rus- 
sia in  respect  to  contraband,  160- 
183;  by  Russia  in  Egjpt,  189; 
by  France  in  permitting  the  use 
of  her  ports  and  waters  by  Bal- 
tic Fleet,  190-198.  (For  viola- 
tions of  Chinese  neutrality,  see 
China,  neutrality  of.) 

Neutrality,  rights  and  obligations 
of  (see  also  International  Law 
and  Neutrals,  rights  of),  as  af- 
fected by  war,  62,  67 ;  obliga- 
tions of,  best  fulfilled  by  intern- 
ing rescued  sailors,  76;  expres- 
sions of  opinion  and  sympathy 
not  a  violation  of,  79-80;  con- 
tributions to  Red  Cross  Society 
or  purchase  of  Japanese  war 
bonds,  not  a  violation  of,  81 ; 
foreign  enlistment  not  necessar- 
ily a  violation  of.  82-83 ;  conduct 
of  the  United  States  in  respect 
to,  78-90;  practical  expression 
of  sympathy  for  wounded,  etc., 
permissible,  84;  gifts  or  volun- 
tarj'  subscriptions  to  a  fund  in 
behalf  of  Greek  revolutionists 
held  to  be  inconsistent  with,  86; 
loans  not  an  infringement  of. 
if  entered  into  with  commercial 
views,  86  n. ;   President   Roose- 


velt's Proclamation  of,  87-88; 
officials  of  United  States  warned 
by  President  Roosevelt  to  ob- 
serve obligations  of,  89;  for- 
bids giving  support  to  either  bel- 
ligerent, 92;  obligations  of,  in 
the  matter  of  the  construction, 
sale,  and  exportation  of  war- 
ships, submarines,  and  other  ves- 
sels intended  for  belligerent 
service,  97-109;  direct  sale  of 
war  vessels  by  a  neutral  state  a 
gross  breach  of,  97  and  n. ;  a 
neutral  state  bound  to  use  due 
diligence  in  the  enforcement  of, 
97-98.  104-106;  to  prohibit  trade 
in  arms  and  ammunition  would 
be  too  great  a  burden  on,  107; 
not  mere  impartiality  but  total 
abstention  the  rule  of.  iii,  214; 
presumption  in  favor  of  the  laws 
of  peace,  a  fundamental  princi- 
ple of.  118-119  and  n. ;  questions 
relating  to.  should  be  referred  to 
next  Hague  Conference,  134; 
the  Russo-Japanese  war  an  im- 
portant epoch  in  history  of,  160: 
voyage  of  Baltic  Fleet  an  illus- 
tration of  defects  in  law  of.  198; 
essence  of,  that  no  aid  be  given 
to  belligerents,  201 ;  French 
"Instructions,"  as  also  British 
and  American  rules,  insufficient 
for  maintenance  of,  202;  obliga- 
tions of.  in  respect  to  the 
twenty-four  hour  rule.  213-216; 
as  to  supply  of  coal  to  belliger- 
ent warships  in  neutral  ports, 
213-216;  as  to  repairs  of  bellig- 
erent warships  in  neutral  ports, 
215  and  n. 

Neutrals,  rights  of.  presumption  in 
favor  of,  118-119  and  n..  128; 
threatened  by  Russia  in  the  case 
of  the  Haimuit.  1 15-1 19;  in  re- 
spect to  wireless  telegraphy  and 
submarine  mines.  115-135  n. ; 
violated  by  Russian  seizures 
and  sinking  of  neutral  merchant- 
men. 136-159;  in  respect  to  con- 
traband. i(>o-iS7;  rights  of,  in 
respect  to  belligerent  fleets  or 
warships  on  the  high  seas,  227- 
228.  242-245;  territorial  sover- 
eignty must  he  respected  by  hel- 


382 


INDEX 


ligerents,  249,  261-263;  duties 
of  (see  Neutrality,  rights  and 
obligations  of). 

Neutrality  Laws  of  United  States, 
81,  82  and  n.,  83,  84,  87,  97  n., 
99-100  and  n.,  102,  108,  no  n., 
112,  114  n. ;  of  Great  Britain 
(see  Foreign  Enlistment  Acts). 

Neutrality  Proclamations,  recent, 
lay  down  the  twenty-four  hour 
rule  and  limit  the  supply  of  coal 
to  belligerent  warships  in  neu- 
tral waters,  88-89  n.,  198-199  and 
n. ;  on  trade  in  contraband,  185 
n. ;  of  many  countries  merely 
enjoin  observance  of  neutrality, 
199  n. 

Neutral  territory,  use  of,  for  mili- 
tary purposes,  at  Che-Foo,  122 
n.,  124  n. 

Neutral  waters  (see  Waters,  neu- 
tral). 

Neutralization  of  the  sick  and 
wounded,  field  ambulances,  mili- 
tary hospitals,  etc.,  272-273; 
temporary  as  opposed  to  perma- 
nent, 248. 

Niu-chwang,  seized  by  Russia,  16; 
Russia  promises  to  restore,  19; 
Russian  note  regarding  surren- 
der of,  2^;  evacuation  of,  de- 
layed, 33,  35  and  n.,  2^;  condi- 
tions of  evacuation,  57;  ques- 
tion of  neutrality  of,  255-258, 
259,  261  n.,  265-266;  remains  in 
possession  of  Russia,  256  and 
n. ;  proclamation  of  martial  law 
at,  257;  foreign  consuls  at,  de- 
prived of  some  of  their  func- 
tions, 257-258;  Japanese  refu- 
gees at,  maltreated,  298. 

Nishi-Rosen  Protocol  of  1898,  text 
of,  47-48. 

Nogi,  General,  replies  to  General 
Stoessel,  305-306. 

Non-belligerents  (see  Neutraliza- 
tion). 

Non-combatants  may  be  made 
prisoners,  120  n.,  277;  not  to  be 
injured  if  peaceable,  280;  treat- 
ment of,  during  Boer  War,  295 
n. ;  Russia  refuses  to  treat  as, 
those  who  refuse  to  surrender, 
301 ;  Japanese  regard  for  rights 


of,  324.  (See  also  Inhabitants 
of  enemy  country.) 

North  Sea  Commission  (see  also 
North  Sea  Incident)  ;  idea  of, 
suggested,  224,  accepted,  225  and 
n.,  226;  negotiations  regarding 
organization  and  scope  of,  228-- 
233  n. ;  Declaration  of  St.  Pe- 
tersburg on,  231-233;  combines 
function  of  a  court  of  arbitra- 
tion and  court  of  inquiry,  233  n., 
240-241  and  n. ;  meeting  and 
composition  of,  234  and  n. ;  de- 
gree of  publicity,  234  n. ;  report 
of,  236-238  and  n. ;  criticism  of 
report,  238-240;  Moore  on,  239- 
240;  a  great  victory  for  princi- 
ple of  arbitration,  240 ;  no  prece- 
dents for  finding  of,  241-242 
and  n. 

North  Sea  Incident  (see  also 
North  Sea  Commission),  191, 
217-246;  description  of,  217-218 
and  n.,  221-222,  238  n. ;  anger 
and  excitement  caused  by,  218 
and  n.,  220,  223-224;  Admiral 
Rojestvensky's  explanation  of, 
221-223 ;  negotiations  relating 
to,  224  flf. ;  Premier  Balfour  on, 
226-228;  International  Commis- 
sion of  Inquiry  on,  233-238; 
British  and  Russian  "Conclu- 
sions" on,  235 ;  character  of 
evidence  bearing  on,  236  and  n. ; 
report  of  Commission  on,  236- 
238  and  n. ;  attitude  of  United 
States  toward,  339. 

Nossi-Be,  Baltic  Fleet  at,  190,  192, 
193,  19s. 

Norway-Sweden,  limits  stay  of 
belligerent  warships  in  neutral 
ports  and  supply  of  coal  in  neu- 
tral waters,  88-89  "■  i  closes 
ports  and  fjords  to  belligerent 
warships,  89  n.,  199  n.,  211  n. ; 
copies  British  instructions  upon 
liberty  of  belligerent  warships, 
199  n.,  211  n. 

Novik,  the,  seeks  refuge  at  Tsing- 
tau,  204. 

Olcg,  the,  interned  at  Manila,  209- 

210. 
"Open  Door"  in  China,  2,  24,  25, 

26,  28,  35,  54,  56,  328,  330  and  n., 


INDEX 


383 


331-332,  334-338  n.,  356-357, 
359;  in  Korea,  41,  54,  56. 

Orient  (see  Far  East). 

Osiris,  the,  detention  and  search 
of,  139  n. 

Outbreak  of  war,  effect  of,  62; 
subjects  of  enemy  state  found 
in  belligerent  territory  at,  Rus- 
sian rules  relating  to,  269,  295, 
297;  Japanese  rules  relating  to, 
282-284,  295,  297;  "days  of. 
grace"  allowed  to  enemy  mer- 
chantmen in  belligerent  ports  at, 
Russian  rules  relating  to,  269; 
Japanese  rules  relating  to,  281- 
282;  recent  practice  respecting, 
296-297  and  n. 

Oyama,  Marquis,  on  use  of  dum- 
dum bullets  by  the  Russians, 
317. 

Parole,  Russian  violation  of,  by 
crews  of  the  Variag  and  Korietz, 
207 ;  n. ;  by  three  Russian  offi- 
cers of  the  Lena.  208  n. ;  by  the 
officers  of  the  Rycshitclni,  259- 
260 ;  by  Russian  officers  at  Port 
Arthur,  321. 

Pascal,  the,  rescues  Russian  sail- 
ors at  Chemulpo,  75  and  n. 

Pavloff,  M.,  Russian  representa- 
tive at  Seoul,  48,  49.  51,  71   n. 

Peace  Conference  at  Portsmouth, 
349-355 ;  President  Roosevelt 
urges,  347-348 ;  composition  of, 
349  and  n. ;  language  question  at, 
350;  twelve  Japanese  conditions 
of  peace,  350-351 ;  negotiations 
relating  to,  351-355;  bearing  of 
Anglo- Japanese  Alliance  on, 
356-357. 

Peace,  laws  of,  presumption  in  fa- 
vor of,  118-119  and  n.,  128. 

Pe-chi-li,  Gulf  of,  15,  117,  125,  126 
n..  258-259.  328. 

Peking,  5,  188,  327,  232,  333  "-, 
356. 

Petcrburg,  the,  searches  and 
seizes  neutral  vessels  in  the  Red 
Sea.  138;  seizes  the  Malacca, 
139;  legality  of  commission  of, 
1 51-153  and  n. 

Pcfrof^avlovsk,  the,  destroyed  by 
a  Japanese  mine,  126  n. 

Philippine  Islands,  78,  327. 


Pillage,  prohibited,  253,  274. 

Piracy,  charges  of,  against  Russia, 
66,  140,  233. 

Pleiades,  the,  detained  for  stra- 
tegic reasons,  137  n. 

Poison,   use  of,   prohibited,  274. 

Port  Arthur,  7,  12,  117,  119,  122 
n.,  124  n.,  125,  126  n.,  132,  136, 
258-259,  266-267,  298;  leased  to 
Russia,  15,  47,  256  n.,  327  n. ; 
Japanese  attack  on  Russian  fleet 
at,  66,  70;  Russian  fleet  at,  138, 
204;  seige  of,  302-306,  321 ;  lease 
of,  transferred  to  Japan,  342,  347, 
351,  356. 

Port  Hamilton,  seized  by  Great 
Britain,  42;  evacuated,  43. 

Port  Said,  189,  191,  192. 

Ports,  belligerent,  '"days  of  grace" 
allowed  to  enemy  merchantmen 
in,  at  outbreak  of  war,  Russian 
rules  relating  to,  269,  295-296 ; 
Japanese  rules  relating  to,  281- 
282,  295-296;  recent  practice  re- 
specting, 296-297  and  n. 

Ports,  neutral,  rights  of  belliger- 
ent armed  vessels  in  (see  also 
Warships,  belligerent) ,  160,  188- 
216,  262-263;  abuse  of  hospital- 
ity of,  189;  supply  of  coal  in, 
191-203,  210-216;  instances  of 
prohibition  of  entry,  199  n.,  210- 
211  n. ;  length  of  stay  in,  210- 
214  and  notes,  216;  repairs  in, 
211,  214-215;  right  of  asylum  in, 
210  and  n. ;  views  of  authorities 
on,  211-212  and  notes;  Balfour 
on,  214-215;  Chief  Justice  Mar- 
shall on,  262. 

Portsmouth,  Peace  Conference  at 
(see  Peace  Conference). 

Portsmouth,  Treaty  of,  341-3595 
signed  and  ratified,  341  ;  terms 
of,  341-346;  provisions  for  rati- 
fication, signing,  and  interpre- 
tation of,  344-345 ;  importance 
of,  346-347;  negotiations  lead- 
ing up  to,  346-355;  results  of, 
355-356. 

Portugal,  enforces  twenty-four 
rule  during  Spanish- American 
War,  213  n. ;  accepts  Hay  Note, 
247  n. 

Powers,  the.  intervene  to  secure 
retrocession    of    Liao-tung    Pc- 


384 


INDEX 


ninsula,  8;  Russian  Circular 
Note  to  (July  13,  1900),  17  n. ; 
Russian  Circular  Note  to  (Aug- 
ust 28,  1900),  17-18;  protests  of, 
19;  appeal  of  Emperor  of  China 
to,  22,  334-335;  protests  of,  24; 
the  Russian  Note  to  (February 
22,  1904),  67,  70-71;  warned 
that  Japanese  acts  in  Korea  are 
invalid,  T2.\  three  rules  of  Treaty 
of  Washington  never  formally 
acepted  by,  98  and  n. ;  notified 
by  Russia  that  war  correspond- 
ents may  be  treated  as  spies, 
116-117;  fail  to  protest  against 
passage  of  the  Straits  by  Rus- 
sian vessels,  139;  guarantee  the 
neutrality  of  China,  188  n.,  247- 
249;  Japan  addresses  note  to, 
threatening  to  use  force  in  case 
of  the  Askold  and  Grosovoi, 
206 ;  conduct  of,  in  refusing  or 
limiting  supply  of  coal  to  Baltic 
Fleet,  216;  favorable  replies 
from,  to  the  Hay  Note,  247 ;  Cir- 
cular Note  (Jan.,  1905)  to, 
specifying  five  breaches  of  Chi- 
nese neutrality,  258-259 ;  Secre- 
tary Hay  suggests  Conference 
of,  268;  Russian  protest  to, 
against  action  of  Japanese  in  fir- 
ing upon  Red  Cross  train,  302; 
about  to  partition  China,  ^^y ; 
violate  territorial  integrity  of 
China,  328;  Hay  Circular  Note 
to  (Sept.  6,  1899),  329-330;  re- 
plies of,  to  Hay  Note.  330-331 
and  n. ;  second  Circular  Note 
to,  332;  repeatedly  pledge  them- 
selves to  maintain  open  door 
and  territorial  integrity  of  Chi- 
na, 22,2. 

Preemption,  the  right  of,  162  n., 
164  n.,  167. 

Princess  Marie,  the,  sinking  of, 
143  n.,  147  n. 

Prinz  Heinrich,  case  of  the,  139, 
155-156. 

Prisoners  of  war,  war  correspond- 
ents may  be  made,  120-121  and 
n. ;  persons  transmitting  wire- 
less messages  to  be  treated  as, 
135  n. ;  treatment  of,  according 
to  Russian  "Instructions,"  277- 
278,    280   and    n. ;    according    to 


Japanese  "Regulations"  and  "In- 
structions," 284-291 ;  kind  and 
amount  of  labor  required  from, 
285  n. ;  postal  articles  for,  287- 
288 ;  postal  orders  for,  2S8 ;  du- 
ties of  Bureau  of  Information 
for,  298-291 ;  treatment  of,  dur- 
ing the  Boer  War,  295  n. ;  Rus- 
sian and  Japanese  rules  relating 
to,  in  conformity  with  Interna- 
tional Law,  318-319;  Japanese 
treatment  of,  319-322,  324;  Rus- 
sian treatment  of,  322-323  and 
n. ;  provisions  in  Treaty  of 
Portsmouth   relating  to,  344. 

Prize  Courts,  decisions  of,  an  im- 
portant source  of  International 
Law,  98  n. 

Prize  Court  at  Vladivostok,  con- 
demns the  Allanton,  171-172; 
condemns  the  Cheltenham,  173 
n. ;  condemns  the  Knight  Com- 
mander, 174;  condemns  part  of 
cargoes  of  Arabia  and  Calchas, 
iy6-iyy\  attempted  justification 
of  decisions  of,  178;  criticism 
of,  by  Secretary  Hay,  181. 

Prizes,  neutral,  alleged  right  of 
destroying,  136,  156-159;  sink- 
ing of,  by  Russia,  143-147,  156- 
159;  justification  of,  by  Russia, 
146 ;  distinction  between  de- 
struction of  enemy  and  neutral, 
156-158  and  n. ;  Prof.  Holland 
on,  157  n. ;  modem  usage  relat- 
ing to,  157  n. ;  Russian  Prize 
regulations  on,  146,  147  n.,  158 
and  n. 

Proclamations  :  of  Admiral  Alex- 
ieff  to  inhabitants  of  Manchuria, 
terms  of,  251-252;  of  the  Gov- 
ernor of  Malta  forbidding  sup- 
ply of  coal  to  belligerent  fleets 
or  warships,  200,  202 ;  of  Presi- 
dent McKinley  at  outbreak  of 
Spanish-American  War,  296- 
297  and  n. ;  of  neutrality  by 
President  Roosevelt,  terms  of, 
87-89.  (See  also  Neutrality 
Proclamations.^ 

Projectiles  dropped  from  balloons 
or  intended  to  spread  asphyxiat- 
ing fumes,  Russia  agrees  to  ob- 
serve declarations  prohibiting 
use  of,  271,  317-318  and  n. 


INDEX 


387 


117;  threatens  rights  of  neutrals, 
119;  defends  Admiral  Alexieflf's 
order,      119;      installs     wireless 
telegraphy    apparatus    at    Che- 
Foo,    122    n. ;    sets    adrift    sub- 
marine mines  on  high  seas,  125- 
126    and    n. ;    makes    no    denial, 
127;     M.     de     Plehve     protests 
against   action   of  the   Japanese 
in  laying  mines,  127  n. ;  attempts 
to  justify  laying  of  mines,  127- 
128;  reply  to  Russian  argument, 
128-130;  complaints  against,  for 
search  and  detention  of  neutral 
merchantmen,  136-138;  pays  de- 
murrage and  indemnity  for  de- 
tention   and    seizure    of   neutral 
vessels,  137  and  n. ;  releases  neu- 
tral  vessels,    138;    declares   coal 
contraband,    138;   seizes   neutral 
vessels  in  the  Red  Sea,  138-142; 
searches     Prinz    Heinrich    and 
confiscates      mail      bags,      139; 
agrees  to  Germany's  demands  in 
case  of  Prinz  Heinrich,  140;  re- 
leases    the     Malacca,     141-142; 
agrees    to     instruct    officers    of 
Volunteer  Navy  to  refrain  from 
interference    with    neutral    ship- 
ping,   141-142 ;    fails    to    convey 
these  instructions,  142 ;  requests 
British    Government    to    convey 
orders  to  Smolensk,  142  n. ;  sinks 
the    Knight    Commander,    142- 
144;  sinks  other  neutral  vessels 
and  Japanese  merchantmen,  143 
n. ;    order?    captain?    to    abstnin 
from     sinking     neutral     vessels, 
143  n.,  146-147  and  n. ;  requested 
to  make  amends   for  sinking  of 
the    Knight    Commander.     145 ; 
justifies  herself,  146  and  n. ;  pays 
indemnity,  147;  protests  against 
coal     as     contraband     at     West 
African  Conference,  i6t  n.,  169; 
publishes  list  of  contraband,  163- 
165;    makes    no    distinction    be- 
tween   absolute   and   conditional 
contraband.    163.    166;    threatens 
attack    upon    neutral    commerce, 
167;  violates  International   Pos- 
tal Convention  and  International 
Law  in  cases  of  the  Calchas  and 
Cincinnati,    \yy    n. ;     replies    to 
British    protest,     182;     modifies 


her    position    as    to    conditional 
contraband,    182;    gives    further 
assurances  to  Great  Britain  183 ; 
files  protest  against  British  ship- 
ments   of   contraband,    183-184; 
disarms  the  Mandjur,  189;  pro- 
poses that  precedent  set  in  case 
of  the  Mandjur  be  followed  in 
case  of  the  Askold  and  Grosovoi, 
206-207     n. ;      requests      intern- 
ment in  case  of  the  Lena,  208; 
decides   in    favor   of  internment 
of  the  cruisers  at   Manila.  211; 
copies   British   restrictions    upon 
liberty    of    belligerent    warships 
in    neutral    ports,    213    n. ;    not 
wholly    averse    to    disarmament 
of  belligerent  warships   in   neu- 
tral ports,  216;  guilty  of  a  long 
series     of    outrages,    218;     ex- 
presses regret  and  promises  rep- 
aration for  North  Sea  Incident, 
219-220,    221,    226;    orders    Ad- 
miral   Rojestvensky    to    remain 
at   Vigo,  225;   accepts   principle 
of  International  Commission  of 
Inquiry,  225 ;  agrees  to  issue  in- 
structions   to    Russian    fleet    se- 
curing freedom  of  neutral  com- 
rnerce,     226     and    n. ;     negotia- 
tions of,  with  Great  Britain  re- 
specting organization  and  scope 
of  North  Sea  Commission,  228- 
231;  "Conclusions"  of,  235;  jus- 
tifies   conduct    of    Admiral    Ro- 
jestvensky, 236;  pays  indemnity, 
23S;    conditional   acceptance   by, 
of  Hay  Note,  247-248;  demands 
dismissal    of    Japanese    military 
instructors     in     Chinese     army. 
255 ;    reoccupies   region    west   of 
Liao  River.  257;  sends  Circular 
Note   to   the   Powers   specifying 
five  breaches  of  Chinese  neutral- 
ity. 258-259;  largely  responsible 
for    weakness    of    China,    2(^: 
threatens     to     absolve     herself 
from    her    agreement    with    the 
Powers  by  an  ex  parte  decision 
of  all  questions  relating  to  Chi- 
nese neutrality.  26S;   issues  Im- 
perial   Order   of    Feb.    28.    IQ04, 
269-271 ;   agrees  to  observe  cer- 
tain   International    Agreements, 
270-271 ;  issues  "Instructions"  to 


388 


INDEX 


Russian  army  respecting  usages 
of  Continental  War,  272-281 ; 
fails  to  provide  Bureau  of  In- 
formation, 278  n. ;  a  signatory 
of  Hague  Convention,  295 ;  al- 
lows six  weeks  of  "grace"  at 
beginning  of  Crimean  War,  and 
in  1877,  296;  conduct  of,  con- 
trasted with  that  of  Japan,  301 
n. ;  accuses  Japan  of  violating 
Hague  and  Geneva  Conventions, 
.302,  305 ;  protests  against  al- 
leged violations  of  the  rules  of 
warfare  by  Japan.  302,  306;  ac- 
cuses Japanese  of  mutilation  of 
the  dead  and  wounded,  308-309 
and  n. ;  bombards  Gensan,  311, 
316;  accuses  Japanese  of  using 
lyddite  shells,  316;  charges 
against,  of  using  dumdum  bul- 
lets, 317  and  n.;  more  regardful 
of  the  rights  of  belligerents  than 
of  neutrals,  323 ;  violates  terri- 
torial integrity  of  China,  328; 
enters  into  Agreement  of  April 
28,  1899,  with  England,  328^329; 
reply  of,  to  Hay  Circular  Note 
of  Sept.  6,  1899,  330  n. ;  urges 
territorial  integrity  of  China. 
333',  relations  of,  with  France, 
334  "■ ;  opposes  opening  of  Muk- 
den and  Antung  to  trade,  338; 
policy  of,  in  China,  339;  ac- 
knowledges Japan's  paramount 
interests  in  Korea,  341 ;  nego- 
tiates treaty  of  peace  with  Japan. 
340-3.'59:  agrees  to  evacuate 
Manchuria,  341-342.  345-355 ; 
transfers  lease  of  Port  Arthur, 
railways,  etc..  to  Japan,  342.  356; 
cedes  southern  portion  of  Sak- 
halin Island  to  Japan,  343,  346; 
grants  fishery  rights  to  Japanese 
subjects.  343:  engages  to  repay 
Japan  expenses  for  care  and 
maintenance  of  prisoners,  344 ; 
sends  favorable  reply  to  Presi- 
dent Roosevelt's  Note  suggest- 
ing peace  negotiations.  349  and 
n.;  rejects  four  of  the  twelve 
Japanese  demands,  351-352; 
concludes  peace  with  Japan,  341- 
355- 
Russian  Advance,  4,  356  and  n. 


Russian  fleet  at  Port  Arthur,  138, 
204. 

Russo-Chinese  Bank,  activity  of, 
3  n. ;  organization  of,  10 ;  terms 
of  "Agreement"  with  China  re- 
lating to,  13-14,  24,  29;  Russian 
demands  on  China  regarding,  24, 
25>  35 ;  proposed  agreement  be- 
tween Russia  and  China  relating 
to,  335- 

Russo-Korean  Bank,  47. 

Russo-Turkish  War.  questions  re- 
lating to,  148  n.,  315  n. 

Russo-Japanese  War,  causes  of,  i- 
61,  67 ;  negotiations  leading  up 
to,  52-60,  68  and  n. ;  severance 
of  diplomatic  relations,  59-61, 
69 ;  outbreak  of  war,  62-70 ;  dec- 
laration of,  66;  conduct  of  the 
United  States  during,  78-90; 
gives  rise  to  several  new  ques- 
tions in  International  Law,  115, 
125 ;  important  questions  bear- 
ing upon  the  rights  of  neutrals 
arising  during.  136;  an  import- 
ant epoch  in  the  history  of  neu- 
tral rights  and  obligations,  160; 
important  issues  raised  during, 
188;  writes  a  new  chapter  of  In- 
ternational Law,  216;  the  most 
sensational  incident  of,  was  the 
North  Sea  outrage.  217;  one  of 
the  most  important  and  difficult 
problems  arising  during,  that  of 
maintaining  neutrality  and  in- 
tegrity of  China.  246  ff. :  rela- 
tions of  the  belligerents  during. 
205-325 ;  character  of  the  war, 
301,  308,  323. 

Rycshitelni,  case  of  the,  205,  258- 
263  and  notes. 

Saigon,  used  as  a  base  of  supplies 
for  Baltic  Fleet.  193  and  n.,  196; 
the  Diana  seeks  refuge  at,  204. 

Sakhalin,  6,  309.  cession  of  south- 
ern half  of.  to  Japan,  343,  346, 
351-356. 

Salisbury.  Lord,  on  open  door  in 
China.  328  n. ;  communication  of 
Mr.  Choate  to,  331. 

Snnitation,  Japanese,  291  n. 

Saufisstma  Trinidad,  case  of  the, 
loo-ioi  and  n. 


INDEX 


385 


Protest    of   the    three    captains    at 

Chemulpo,  71  and  n. 
Protocols : 

Yamagata-Lobanoff       (1896), 

terms  of,  45-46. 
Nishi-Rosen    (i8g8),   text   of, 

47-48. 
Peace      Protocol      (Sept.      7, 
iQOi),    between    China    and 
the  Powers,  ^23- 
Protector,  case  of  the.  94-95,  112- 

114. 
Prussia,    allows    "days    of   grace"' 
in  1870.  296. 

Quarantine     station,     fired     upon, 

306. 
Quarter,  must  be  given,  274.  280. 

Railways  (see  also  Chinese-East- 
ern Railway,  Manchuria.  Trans- 
Siberian  Railway),  Manchurian, 
10-16,  18,  21,  256  n.,  Ti27,  335, 
342-343,  345,  351.  355-356; 
agreement  regarding,  13-14 ; 
"Statutes"  relating  to,  13-14; 
police  agents  for,  14;  railway 
guards  for,  18.  3;^ ;  China  to  pro- 
tect, 24;  restoration  of  the 
Shan-hai-kwan  -  Niu-c  h  w  a  n  g 
Railway  to  Russia.  31 ;  Korean, 
between  Seoul  and  Fusan.  48 
n.,  50;  the  question  of  construc- 
tion of  the  Seoul-Wiju  Railway, 
50. 

Ransom,  whether  permissible  in 
case  of  bombardment  by  a  naval 
force,  314-315  n. 

Red  Cross  badge,  medical  and 
sanitary  personnel  shall  wear. 
273;  use  of.  to  deceive  the 
enemy  prohibited.  274:  not  to 
be  fired  upon.  287 :  abuse  of, 
301 ;  fired  upon.  309  n. 

Red  Cross  flag,  hospitals,  etc., 
shall  carry.  273;  use  of  to  de- 
ceive the  enemy  forbidden.  274: 
not  to  be  fired  upon.  281  ;  fired 
upon.  302.  .305-306,  309  n. :  abuse 
of,  303- 

Red  Cross  Society,  movement  to 
raise  a  fund  for.  80-81  n. ;  com- 
munication from  Secretary  Hay 
to  Mr.   Takahira  regarding.  81  ; 


no  sound  objections  to  contribu- 
tions to.  84. 

Red  Sea.  Russian  seizures  of  ves- 
sels in,  136,  138-142,  148; 
search  and  detention  of  neutral 
vessels  in,  136-138. 

Refugees,  Japanese  at  Niu- 
chwang  and  Port  Arthur  mal- 
treated, 298. 

Regulations  respecting  warfare  on 
land  of  Hague  Conference, 
Russia  agrees  to  observe,  270, 
271  n. ;  Art.  I  of.  271-272  n.; 
compared  with  Russian  "In- 
structions," 272  n.,  275  n..  278 
n.,  279  n.,  285  n.,  286  n..  287  n. 

Repairs  of  belligerent  warships  in 
neutral  ports.  211-215;  in  the 
case  of  the  Czarevitch.  204;  of 
the  Askold  and  Grosovoi.  205- 
206;  of  the  Lena.  207-208;  in 
case  of  the  three  Russian  cruis- 
ers at  Manila.  209-210,  215  n. ; 
views  of  authorities  on,  211  n. ; 
Lawerence  on,  215  and  n. 

Report  of  North  Sea  Commission. 
236-238  and  n. ;  criticism  of. 
238-240;  Moore  on.  239-240. 

Requisitions,  for  militarj-  purposes 
permissible,  253;  conditions  un- 
der which  they  may  be  imposed. 
27s  and  n. 

Rojestvensky,  Admiral,  190-192, 
194-195,  218  n..  219.  220;  inter- 
views with.  22T-222  and  n. ;  of- 
ficial telegrams  of.  222-223:  suf- 
fers from  nervousness.  223  n. ; 
ordered  to  remain  at  Vigo.  225 ; 
receives  instructions  from  Rus- 
sian Govemmenl,  226  n. ;  criti- 
cised by  Premier  Balfour,  227: 
receives  secret  code  of  instruc- 
tions from  Russian  Admiralty. 
228  n.;  responsibility  of.  22T,, 
235-240. 

Rosen.  Baron,  negotiations  of. 
with  Japan.  55,  56  n..  57;  at 
Portsmouth.  349.  353  and  n. 

Roosevelt.  President.  Proclama- 
tion of  Neutrality  (Feb.  10. 
1004'),  ^7-^:  Fxccutive  Order 
of.  89;  orders  that  the  Lena  be 
disarmed.  208:  decides  that  the 
Russian  vessels  at  ^Tanila  must 
cither  dismantle  or  disarm  with- 


386 


INDEX 


in  twenty-four  hours,  209;  im- 
portant precedent  set  by,  215  n. ; 
on  policy  of  England  and 
United  States  in  China,  331 ; 
purpose  of,  in  China,  332;  plays 
leading  part  in  peace  negotia- 
tions, 346;  sends  identical  note 
to  Russia  and  Japan  urging 
peace  negotiations,  347-348;  in- 
terview with  Baron  Rosen,  355 
and  n. ;  proposes  cession  of 
Sakhalin  and  repurchase  by 
Russia,  353-354  n. ;  appeals  to 
Czar,  354  and  n. ;  appeals  to 
Mikado,  354-355 ;  interviews 
with  Baron  Kaneko,  354-355  "• 

Rules  of  warfare,  Russian  and 
Japanese  (see  Warfare,  rules 
of). 

Rurik,  the,  sinking  of,  301  n. 

Ruses  of  war  allowable,  301. 

Russia,  interests  of.  in  the  Far 
East,  2-3,  28;  expansion  of,  3-4; 
conquest  of  Siberia  and  advance 
to  the  Pacific,  4-6;  acquisition 
of  Manchuria,  ^ ;  intervenes  to 
secure  retrocession  of  the  Liao- 
tung  Peninsula,  7,  327 ;  ultimate 
designs  of,  9;  concludes  Cassini 
Convention,  10-12;  leases  Port 
Arthur  and  Talien-wan  from 
China,  15,  327;  occupies  ?.Ian- 
churia,  16  flf. ;  seizes  Niu- 
chwang,  16;  sends  Circular  Note 
to  the  Powers,  16-17 ;  lays 
down  fundamental  principles,  17 
n. ;  promises  to  withdraw  her 
troops.  18;  promises  to  restore 
Niu-chwang  to  China.  19; 
agrees  to  restore  Manchuria,  21 ; 
the  Lamsdorff-Yang-yu  Con- 
vention, 22 ;  fails  to  evacuate 
Manchuria.  22-23 ;  makes  fresh 
demands  on  China,  23-24;  as- 
surances by,  25 ;  demands  on 
China  regarding  Russo-Chinese 
Bank,  24;  ceases  to  press  China, 
26;  accepts  counter  proposals, 
26,  29 ;  declaration  of,  regarding 
Anglo- Japanese  Agreement,  28- 
29;  note  regarding  surrender  of 
Niu-chwang,  32 ;  convention  for 
evacuation  of  Manchuria,  29-32, 
256  and  n.,  237 ',  evacuates  re- 
gion west  of  the  Liao-River.  2)?>^ 


256  and  n. ;  fails  to  evacuate  the 
rest  of  Manchuria,  34,  36,  256  and 
n. ;  makes  seven  new  demands, 
34-35»  2>2>7 ',  makes  six  fresh  de- 
mands, 36  n.,  57;  aggressive  and 
exclusive  policy  of,  in  Man- 
churia, 36;  relations  with  Korea, 
42  fif.  (see  Korea)  ;  negotiations 
with  Japan,  53-60,  68  and  n. ;  in- 
creased activity  of,  in  Man- 
churia and  Korea,  56;  military 
activity  of,  in  the  Far  East,  59- 
60  and  n. ;  accuses  Japan  of 
treachery,  66  ff. ;  breaks  off 
diplomatic  relations  with  Japan, 
61.  68-70;  delays  in  answering 
Japanese  notes,  68;  accuses 
Japan  of  violation  of  Interna- 
tional Law,  70-71 ;  real  motive 
of,  in  entering  protest,  72; 
claims  treaty  between  Japan  and 
Korea  is  invalid  because  made 
under  duress,  73  and  n. ;  view 
prevails  in,  that  granting  of  per- 
mit to  construct  submarine  cable 
would  constitute  breach  of  neu- 
trality, 78;  good  eflfect  in,  pro- 
duced by  President  Roosevelt's 
Executive  Order,  89;  sale  to,  of 
steamers  belonging  to  the  Ger- 
man Auxiliary  Navy,  91  and  n. ; 
exportation  to,  of  torpedo  boats 
from  Germany,  91,  92 ;  pur- 
chases vessels  in  England  for 
use  as  transports,  93 ;  in  com- 
petition with  Japan  for  the  pur- 
chase of  transports  in  Holland 
and  Belgium,  93 ;  agents  of,  ne- 
gotiate for  purchase  of  cruisers 
in  South  America,  94  and  n. ; 
agents  of,  order  torpedo  craft 
in  the  United  States,  94  ff . ; 
fails  to  call  attention  of  United 
States  Government  to  fact  that 
submarines  are  being  built,  113 
and  n. ;  declaration  of,  to  the 
United  States  threatening  to 
treat  war  correspondents  as 
spies,  115-116;  sends  similar  note 
to  the  other  Powers,  116  and  n. ; 
notified  that  rights  of  American 
citizens  are  not  waived,  117  n. ; 
gives  assurances  to  Great  Bri- 
tain and  United  States,  117  n. ; 
provocation    for    Russian    note, 


INDEX 


389 


Scandia,  seizure  of  the,  142  n. 

Scandinavian  countries  (see  Den- 
mark  and   Norway-Sweden). 

Seizures,  Russian,  of  neutral  ves- 
sels in  Red  Sea,  136-142,  148, 
151-153;  in  the  Pacific  Ocean, 
143-144. 

Seoul,  40,  43,  44,  45,  46,  47- 

Settlements,  foreign,  in  Manchu- 
ria opposed  by  Russia,  36  n.,  58 
and  n.,  338  n. 

Shanghai,  78 ;  Russian  warships 
interned  at,  188,  205-206,  259,  267. 

Shang-tung  Peninsula,  Germany 
secures    privileges    in,    15,    204, 

327- 
Sheng-King,    province   of,    18,   33, 

34  n. 

Shimonoseki,  Treaty  of,  6. 

Siberia,  4,  256  n.,  298,  352,  356. 

Sick  and  wounded,  the,  Russian 
"Instructions"  relating  to,  272 
flf. ;  treatment  of,  276,  280-281, 
284,  291  and  n.,  307  n. ;  Japanese 
treatment  of,  2,'^9-2^2„  3^4;  Rus- 
sian treatment  of,  322  and  n. 

Sieges,  Hague  Regulations  on, 
307  n. ;  examples  of,  315  n. 

Sinking  of  neutral  prizes  by  Rus- 
sians, 136,  142-147  and  notes, 
156-159;  sinking  of  Japanese 
merchantmen,  143,  299-301. 

Smith  and  Sibley,  on  the  case  of 
the  Allanton,  172  n. ;  on  the  case 
of  the  Cheltenham,  173  "• ;  o" 
cases  analogous  to  North  Sea 
Incident,  240-241  n. 

Smolensk,  the,  searches  and  seizes 
neutral  vessels  in  the  Red  Sea, 
138;  confiscates  mail  of  Prins 
Heinrich,  139;  appears  in  South 
African  waters,  142  n. ;  legality 
of  commission  of,  152  n. 

Sonntag,  the,  fired  upon  of?  Dog- 
ger Bank,  223  n. 

Southampton,  Premier  Balfour's 
speech  at,  226-228. 

Spain,  sends  unfavorable  reply  to 
Hay  Note,  247  n. ;  permits  Bal- 
tic Fleet  to  coal  at  Vigo  and  ex- 
ceed twenty-four-hour  rule,  191 ; 
protests  against  furnishing  arms 
and  ammunition  to  insurgents 
during  Spanish-American  War, 
310  n. 


Spanish-American  War,  questions 
relating  to,  65  n.,  79-80,  124  n., 
154  n.,  168,  192  n.,  296-297  and 
n.,  304  n.,  310  n.,  315  n.,  323, 
325-327- 

Speyer,  M.,  Russian  representa- 
tive at  Seoul,  47. 

"Spheres  of  interest"  or  "influ- 
ence" in  China,  327,  330,  331, 
339- 

Spies,  war  correspondents  to  be 
treated  as,  116-117;  Bismarck's 
threat  to  treat  balloonists  as, 
116  n.;  definitions  of,  121  and  n., 
279;  persons  transmitting  wire- 
less messages  not  to  be  con- 
sidered, 135  n. 

Stead,  Alfred,  on  Japanese  treat- 
ment of  sick  and  wounded,  321. 

St.  Kilda,  sinking  of  the,  143  n., 
147  n. 

Stoessel,  General,  complains  of 
bombardment  of  Red  Cross 
Hospitals,  305. 

Story,  Judge,  opinion  of,  in  case 
of  Santissima  Trinidad,  100  and 
n. 

Stowell,  Lord  (Sir  W.  Scott), 
opinion  of,  on  right  of  visit  and 
search,  149;  on  convoy,  150  n. ; 
on  destruction  of  prizes,  156  n., 
157  n. ;  in  the  case  of  the  Jtnina, 
172;  in  the  case  of  the  Nancy, 
172  n. 

Suez  Canal,  138,  139,  152  and  n., 
189,  191. 

Suez,  Gulf  of,  138. 

Subjects  of  enemy  state  found  in 
belligerent  territory  at  outbreak 
of  war,  Russian  rules  relating 
to,  269,  295,  297;  Japanese  in- 
structions relating  to,  282-284, 
295-297;  conditions  under  which 
they  may  be  considered  bel- 
ligerents, 272;  a  belligerent  has 
the  right  to  expel,  in  extreme 
cases,  298-299;  recent  practice, 
299  and  n. 

Submarine  Cables  (see  Cables). 

Submarines,  exported  over  land 
from  Germany  to  Russia,  92; 
contracts  for  construction  of,  in 
United  States,  94;  case  of  the 
Protector,  94-95.    112-114;   case 


390 


INDEX 


of  the  Fulton,  95,  112  n. ;  state- 
ment of  Secretary  Loomis  re- 
garding, 95;  rumors  of  the  sale, 
construction,  or  exportation  of 
craft  in  or  from  the  United 
States,  95-96;  case  of  the  Caro- 
line, 96;  modern  usage  seems  to 
permit  sale  of,  m;  classed  as 
contraband,  in;  neutrals  not 
free  from  responsibility  in  such 
cases,  112;  license  in  the  use  of, 
130  and  n. ;  torpedo-boat  de- 
stroyers interned  at  Tsing-tau. 
204;  alleged  attack  of  Baltic 
Fleet  by  Japanese  torpedo-boats, 
221-222,  227,  235-237,  238  n.,  243. 
Switzerland,  neutralization  of,  248. 

Taft,  Secretary,  draws  distinction 
between  disablement  of  a  vessel 
caused  by  accident  and  damage 
caused  in  battle,  209  n. 

Takahira,  Mr.,  Japanese  Minister 
at  Washington,  81  and  n.,  260 
n.,  298,  307,  349-  ., 

Talbot,  the,  rescues  Russian  sail- 
ors at  Chemulpo,  75  and  n. 

Talien-wan  (Dalny),  12,  259; 
leased  to  Russia,  15,  47,  256  n. ; 
made  an  open  port,  327  n.,  330 
n. ;  transferred  to  Japan,  342, 
351- 

Terek,  the,  sinks  neutral  vessels, 
147  n. ;  interned  at  Batavia, 
210  n. 

Thea,  sinking  of  the,  144,  156, 
173  n. 

Three-Mile  Limit,  necessary  to  en- 
large, 127-128,  132;  laying  of 
mines  outside  of,  130-131;  states 
a  right  to  lay  mines  within, 
130;  history  of,  132-133;  United 
States  attempts  to  obtain  exten- 
sion of,  133  n. ;  The  Institute  of 
International  Law  seeks  to  ob- 
tain extension  of,  134  n. ;  ques- 
tions relating  to,  should  be  re- 
ferred to  next  Hague  Confer- 
ence, 134. 

Tientsin  Convention,  terms  of,  41 ; 
ignored  by  China,  43. 

Torpedo  Boats   (see  Submarines). 

Trans-Manchurian  Railway  (see 
Chinese  Eastern  Railway). 


Trans-Siberian  Railway,  6,  9,   11, 

14. 
Transports,   purchase  of,  in  Eng- 
land, Holland  and  Belgium,  93. 
Treachery,     Russian     charges    of, 
against   Japan,    66;    conduct    of 
both    belligerents    honorable    in 
abstaining  from,  301. 
Treaties     (see    also    Agreements, 
Alliances,  and  Conventions)  : 
Aigun  (1858),  5- 
Arbitration   Treaty  of  Hague 

Conference  (1899),  347. 
Berlin   (1878),  148  n. 
Commercial   Treaties:   be- 
tween    United     States    and 
China,  338;   between  Japan 
and  China,  338  n. 
Japanese-Korean   (1904),  73. 
London   (1841),  141  n.,  148  n. 
London     Conference     (1871), 

148  n. 
Nerchinsk  (1681),  4. 
Paris   (1856),   141  n.,  148  n. 
Peking  (i860),  5. 
Portsmouth    (1905),  341-360. 
Shimonoseki    (1895),  6-7. 
Washington    (1870),  83. 
Treaties,    whether    valid    if   made 

under  duress,  73-75. 
Truces  for  burial  of  the  dead,  cus- 
tomary to  grant,  304  and  n. 
Tsing-tau.    Russian    vessels    seek 

refuge  at,  204,  207  n. 
Tsushima,  battle  of,  194. 
Tsushima  Islands,  6,  37  n.,  39,  42. 
Tumen    River,    mining   concession 

to  Russia  on,  45,  50-51. 
Turkey,  rumors  of  purchase  of 
ships  by,  for  Russia,  94;  fails  to 
protest  against  passage  of 
Straits  by  vessels  of  Russian 
Volunteer  Navy,  139;  enters 
into  convention  with  Russia  in 
1891  to  permit  passage  of 
Straits  by  Volunteer  Nav3%  148 
n. ;  allows  days  of  grace  in  1877, 
296. 
Twenty-four-hour  rule,  88,  212- 
216;  application  of,  in  case  of 
the  Mandjur.  188-189;  in  case 
of  the  Novik,  204;  in  case  of 
thf  Diana,  205 ;  in  case  of  the 
Askold  and  Grosovoi,  205-206; 
in  case  of  the  Lena,  207 ;  in  case 


INDEX 


391 


of  the  Terek,  210  n. ;  in  case  of 
the  Russian  cruisers  at  Manila, 
209-210. 

Uchida,  Mr.,  views  of,  81. 

Ultimatum,  usually  precedes  a 
war,  66. 

United  States,  protests  against  the 
Alexieff-Tseng  Agreement,  19; 
protests  against  Russian  de- 
mands on  China  regarding  Rus- 
so-Chinese  Bank,  24,  26,  335- 
336;  protests  against  Russia's 
seven  new  demands,  36,  337; 
conduct  of,  in  respect  to  its 
neutral  rights  and  duties,  78- 
90;  a  clear  and  consistent  rec- 
ord, 78,  89;  application  to  for 
construction  of  submarine  ca- 
ble, 78;  "American  meddling," 
79;  manifests  interest  in  the 
fate  of  China,  79 ;  sympathy  for 
Japan,  80  ff.,  339;  citizens  of, 
desire  to  enlist  in  Japanese 
army,  80;  mass  meeting  in  New 
York,  80-81  n. ;  failure  of,  to 
prevent  departure  of  citizens  for 
the  Orient  not  a  violation  of  neu- 
trality, 83 ;  bound  to  prevent  fit- 
tingout,  arming  and  equipping  of 
warships  intended  for  belliger- 
ent service,  84;  fully  discharges 
neutral  obligations,  87 ;  issues 
Neutrality  Proclamation,  87-88; 
Russian  and  Japanese  agents  at 
work  in,  94;  rumors  of  sale, 
construction  in  or  of  exporta- 
tion of  torpedo  craft  from,  95- 
96;  agrees  to  abide  by  Rules  of 
Treaty  of  Washington,  98  n. ; 
classes  torpedo  craft  as  contra- 
band, III;  not  responsible  in 
case  of  Protector,  112;  receives 
note  from  Count  Cassini  threat- 
ening to  treat  war  correspond- 
ents as  spies,  115-116  and  n. ; 
decides  to  defer  protests,  117; 
notifies  Russia  that  rights  of 
American  citizens  are  not 
waived,  117  n. ;  receives  assur- 
ances from  Russia,  117  n. ;  in- 
stitutes investigation  to  ascer- 
tain extent  of  mines,  126-127  n. ; 
decides  not  to  participate  in 
work  of   destroying  mines,    127 


n. ;  attempts  to  secure  exten- 
sion of  three-mile  limit,  133  n. ; 
position  of,  in  respect  to  con- 
voy, 151  n. ;  on  search  of  mail 
steamers,  153;  on  destruction  of 
prizes,  158  n. ;  issues  instruc- 
tions regarding  search  of  mail 
bags,  154  n. ;  protests  against 
decision  of  the  Russian  prize 
court  in  case  of  the  Arabia, 
165  n. ;  semi-official  protest  of, 
against  Russian  list  of  contra- 
band, 167  and  n. ;  sends  Circular 
Note  on  Russian  list  of  contra- 
band, 168-170;  enters  condi- 
tional protest  in  case  of  Knight 
Commander,  174  n. ;  asks  for 
release  of  Arabia,  176;  requests 
investigation  in  case  of  the 
Cincinnati,  lyy  n. ;  protests  in 
case  of  Arabia,  179-182;  com- 
plains of  trade  in  contraband 
between  Great  Britain  and  Con- 
federacy, 184  n. ;  position  of,  in 
respect  to  right  of  neutral  to 
trade  in  contraband,  185-186  and 
n. ;  adopts  British  restrictions 
upon  liberty  of  belligerent  war- 
ships in  neutral  ports,  213  n. ; 
sends  Hay  Note  (Feb.  10,  1904), 
246-247;  receives  favorable  re- 
plies, 247-248;  outcry  in,  owing 
to  proclamation  of  martial  law 
at  Niu-Chwang,  257  and  n. ; 
guilty  of  two  violations  of  neu- 
trality of  territorial  waters  dur- 
ing Civil  War,  262  n. ;  calls  at- 
tention of  China  to  Russian 
charges  of  violation  of  neutral- 
ity, 264;  suggests  Conference  of 
the  Powers,  268;  "days  of 
grace"  allowed  by,  at  beginning 
of  Spanish-American  War.  296- 

297  and  n. ;  acts  in  behalf  of 
destitute    Japanese     in     Siberia, 

298  and  n. ;  signs  the  first  Dec- 
laration of  the  Hague  Confer- 
ence, 318  n. ;  unable  to  obtain 
names  of  Japanese  prisoners. 
322  n. ;  relations  with  England 
as  affected  by  the  Far  Eastern 
Question.  325-341 ;  acquires 
Philippine  Islands.  227;  issues 
famous  Hay  Circular  Note 
(Sept.  6,  1899),  329-331;  policy 


392 


INDEX 


of,  in  China,  331-332;  second 
Circular  Note  of  (July  3,  1900), 
332;  acts  in  harmony  with  Eng- 
land and  Japan,  333  and  n.,  335 ; 
makes  representations  to  China, 
334-335  ;  disclaims  all  knowledge 
of  negotiations  leading  up  to 
Anglo- Japanese  Alliance,  33^ 
337  n. ;  concludes  commercial 
treaty  with  China,  338 ;  interests 
of  United  States  and  Great 
Britain  in  the  Orient  identical, 
331,  338  n.,  339-340;  policy  of, 
in  the  Orient,  339-340;  pro- 
claims neutrality  and  adminis- 
trative entity  of  China,  338;  re- 
lations of,  with  Great  Britain 
as  affected  by  the  war,  339; 
sympathy  of,  with  Japan,  339; 
protests  against  Russian  doc- 
trine of  contraband,  339;  sends 
identical  note  to  Russia  and  Ja- 
pan, urging  peace  negotiations, 
347-348;  selected  as  place  of 
meeting  for  the  Peace  Confer- 
ence, 349. 

U.  S.  V.  Quincy,  case  of  the,  lOi, 
103,  107  n. 

Unneutral  service,  no  question  of, 
in  case  of  the  Haimun,  116  n. ; 
in  case  of  the  Cheltenham, 
173  n- 

Use  of  neutral  territory  for  mili- 
tary purpose  (see  Base  of  op- 
erations). 

Uti  possidetis,  rule  of,  352. 

Variag,  crew  of,  rescued  at  Che- 
mulpo, 75,  77  n. ;  violated  parole, 
207  n. 

Venezuela,  boundary  dispute  with 
England,  325. 

Vessels,  intended  for  belligerent 
service  (see  also  Warships), 
fitting  out,  arming,  etc.,  pro- 
hibited by  the  United  States 
Neutrality  Laws  and  British 
Foreign  Enlistment  Acts,  99  and 
n. ;  building  and  construction  of, 
prohibited  by  British  Foreign 
Enlistment  Act  of  1870,  100  and 
n. ;  mere  contraband  if  built  or 
sent  with  animus  videndi,  100 
and  n. ;  a  proximate  hostile  ex- 
pedition if  dispatched  with  ani- 


mus belligerandi,  100  and  n. ; 
older  English  doctrine  inade- 
quate, 103-104;  neutral  state 
bound  to  use  due  diligence  to 
prevent  not  only  fitting  out,  arm- 
ing, etc.,  but  also  construction, 
sale  and  exportation  of,  106  and 
n. ;  argument  in  favor  of  this 
view,  106-107  and  n. ;  difficult 
to  distinguish  between  such  ves- 
sels and  others,   106,  109  and  n. 

Vessels,  neutral  (see  Merchant- 
men ) . 

Vicksburg,  the,  at  Chemulpo,  70 
n-,  75-76  n. 

Vigo,  Baltic  Fleet  at,  191,  221,  225, 
226  n.,  229  n. ;  Russian  inquiry 
at,  233. 

Visit  and  Search,  right  of,  136, 
148-156;  exercise  of,  in  case  of 
mail  steamers,  perhaps  justifia- 
ble, 139;  by  Russian  Volunteer 
Navy,  141  and  n. ;  opinion  of 
Lord  Stowell  on,  149;  Premier 
Balfour  on,  149  and  n. ;  limita- 
tions on,  149-150  n. ;  resistance 
to,  entails  confiscation,  149-150 
and  n. ;  right  of  Peterburg  to 
search  the  Malacca,  1 51-153  and 
n. ;  as  applied  to  mail  steamers, 
153-156;  modern  usage  relating 
to,  154  n. ;  Prinz  Heinrich  sub- 
ject to,  155;  violated  by  Russia 
in  cases  of  Calchas  and  Cincin- 
nati, 177  n. 

Vladivostok,  acquisition  of,  5-6, 
9-1 1,  14-15,  176  n.,  190,  193,  196, 
300;  bombardment  of,  311,  316. 

Vladivostok  squadron,  sinks  neu- 
tral prizes,  136;  inflicts  damage 
upon  Japanese  transports,  138; 
sinks  Thea  and  Knight  Com- 
mander, 144;  captures  neutral 
vessels,  171,  173. 

Volunteer  corps,  conditions  under 
which  they  may  be  considered 
as  belligerents,  272;  must  wear 
distinctive  emblem,  272,  307-308. 

Volunteer  Navy,  Russian  seizure 
of  neutral  vessels  in  Red  Sea 
by,  136,  138;  status  of,  141  and 
n.,  148  and  n. ;  Russia  agrees  to 
instruct  officers  of,  to  refrain 
from  interference  with  neutral 
shipping,    141 ;    subsequent   seiz- 


INDEX 


393 


ures  by,   142  and  n. ;  the  Lena, 
a  cruiser  of,  207. 

Waeber,  M.,  Russian  representa- 
tive at  Seoul,  intrigues  of,  43 
n.,  47. 

Waima  incident,   the,  242  n. 

War,  an  abnormal  relation,  62, 
118;  efifect  of  declaration  or 
outbreak  of,  62 ;  preceded  by 
negotiations  and  ultimatum,  65- 
66;  justice  or  injustice  of,  67- 
68  n. 

War  correspondents,  status  of, 
119-121  and  notes,  277;  and 
wireless    telegraphy,    121    flf. 

Warfare,  laws  of  (see  also  Inter- 
national Law  and  Neutrality), 
forbid  laying  of  submarine 
mines  on  high  seas,  128-130  and 
n. ;  permit  use  of  mines  in  terri- 
torial waters,  130,  13- ;  funda- 
mental law  of,  253 ;  violated  by 
England  during  Boer  War,  295 
n. ;  criticism  of  Russian  methods 
of,  299 ;  violated  by  the  Germans 
during  Franco- Prussian  War, 
315  n. ;  fairly  well  observed  by 
both  belligerents,  323. 

Warfare,  alleged  violations  of,  by 
Russia :  Sinking  of  Japanese 
merchantmen,  299-301 ;  use  of 
Chinese  clothing,  307-308;  mu- 
tilation of  the  dead  and  wound- 
ed, 308-309;  enlistment  of  con- 
victs, 309-311;  bombardment  of 
an  undefended  coast  town,  311; 
use  of  dumdum  bullets,  317. 

Warfare,  alleged  violations  of,  by 
Japanese :  Fairing  on  Red  Cross 
train,  301-303 ;  treachery  in  use 
of  white  flag.  Red  Cross  flag, 
etc.,  303-304;  firing  on  hospital 
ships,  305-306 ;  firing  upon  quar- 
antine station,  306:  mutilation 
of  the  dead  and  wounded,  308- 
309  and  n. ;  bombardment  of  an 
undefended  coast  town,  311  and 
n. ;  use  of  lyddite  shells.  316. 
Warfare  on  land.  Regulations  of 
Hague  Conference  respecting 
(see  also  Hague  Conference, 
Regulations  of:  Russia  agrees 
to  observe,  270,  271  n. ;  Art.  I 
of,  271  n. ;  question  as  to  binding 


character  of  these  rules,  271- 
272  n. ;  compared  with  Russian 
"Instructions,"  272  n.,  275  n., 
278  n.,  279  n.,  285  n.,  286  n., 
287  n. ;  Japan  and  Russia  signa- 
tories of,  295;  "Instructions"  to 
Russian  army,  272-281 ;  Japa- 
nese and  Russian  rules  of,  269- 
295 ;  Russian  rules  of,  as  em- 
bodied in  Imperial  order  (Feb. 
28,  1904),  269-271;  in  "Instruc- 
tions" to  Russian  army  respect- 
ing usages  of  Continental  War, 
272-281 ;  Japanese  rules,  as  em- 
bodied in  Imperial  Ordinance 
(Feb.  9,  1904),  281-288;  In- 
structions to  the  general  Gov- 
ernment of  Tai-wan  (Feb.  10, 
1905),  2S2-283;  note  to  school- 
teachers of  Japan  (Feb.  10, 
1904),  283;  Instructions  to  heads 
of  religious  sects  (Feb.  19, 
1904),  283-284;  regulations  rel- 
ative to  the  treatment  of  pris- 
oners of  war,  284-285 ;  Japanese 
rules  as  embodied  in  additional 
instructions  (Feb.  19,  1994). 
285-287;  additional  instructions 
(Sept.  10,  1904),  285  n. ;  "Post- 
al Regulations  for  Prisoners  of 
War"  (Mar.  3,  1904)-  287-288; 
Imperial  ordinance  (Feb.  21, 
1904).  relative  to  "Bureau  of  In- 
formation for  Prisoners  of 
War,"  289-290 ;  Japanese  "Reg- 
ulations" relative  to  clearing  of 
the  battlefield  and  the  interment 
of  the  bodies  upon  said  field, 
291-294. 

Warfare  (naval),  conditions  of, 
changed,  loi ;  questions  relating 
to.  should  be  referred  to  coming 
Hague  Conference,  I34'.  on 
question  of  naval  bombardment, 
306-307  n.,  311-316  and  notes. 

Warships  (see  also  Vessels  in- 
tended for  belligerent  service), 
movement  to  present  to  Japa- 
nese Government,  80,  84;  fitting 
out,  arming,  or  equipping  of, 
forbidden,  83;  doctrine  of  in- 
tent as  applied  to.  86-87;  in- 
tended for  belligerent  service,  91- 
115;  ordered  by  Japan  in  Eng- 
land, 93 ;   negotiations   for  pur- 


394 


INDEX 


chase  of,  in  South  America  by 
Russian  and  Japanese  agents, 
94  and  n. ;  sale  of,  by  a  neutral 
state,  97  and  n. ;  neutral  state 
bound  to  use  due  diligence  to 
prevent,  97-98;  approximates  a 
military  expedition,  112;  right 
of  visit  and  search  of,  148-149; 
important  issues  respecting 
rights  and  privileges  of,  in  neu- 
tral ports  and  waters,  raised 
during  Russo-Japanese  War,  188, 
204;  supply  of  coal  to,  in  neu- 
tral ports  and  waters,  190-203 ; 
divergence  in  practice  in  matter 
of  furnishing  coal  to,  198,  199- 
200;  210-216;  Proclamation  of 
Governor  of  Malta  forbidding 
coal  to,  200;  increasing  impor- 
tance of  coal  to,  200-203 ;  case 
of  the  Mandjur,  188-189;  the 
Novik  and  Czarevitch,  204 ;  the 
Diana,  204-205 ;  the  Askold  and 
Grosovoi,  205-206;  the  Lena, 
207-208;  the  three  Russian 
cruisers  at  Manila,  209-210,  215 
n. ;  conditions  of  right  of  asy- 
lum of,  in  neutral  ports,  210 
and  n. ;  instances  of  prohibition 
to  enter  neutral  ports,  199  n., 
210-21 1  n. ;  views  of  authorities 
on,  210-212  and  n.,  262-263; 
length  of  stay  in,  213-216;  re- 
pairs allowed,  213-215;  rights 
of,  on  the  high  seas,  242- 
245 ;  Premier  Balfour  on,  227- 
228;  Count  Cassini  on,  242-243; 
views  of  naval  officers  on,  243 ; 
Prof.  Holland  on,  244;  Japan 
demands  surrender  of  Russian, 
interned  in  neutral  ports,  351 ; 
refused  by  Russia,  351-352. 

Washington,  treaty  of,  83 ;  First 
Rule  of,  97-98  and  n.,  100,  loi, 
106,  112. 

Waters,  neutral,  rights  of  bel- 
ligerent armed  vessels  in,  188, 
204;  use  of  French  territorial 
waters  by  Baltic  Fleet,  190-203 ; 
supply  of  coal  in,  190-203,  213- 
214. 

Waters,  territorial,  rights  and  du- 
ties of  belligerent  warships  in, 
262-263 ;  instances  of  violation 
by,  262  n. ;  Walker  on,  262-263  ', 


case  of  the  General  Armstrong, 
262-263  n- 

Webster,  Daniel,  in  the  case  of 
the  Caroline,  262. 

Wei-hai-wei,  117,  125  n.,  126  n., 
132  n. ;  leased  to  Great  Britain, 
15  and  n.,  328. 

Wireless  telegraphy,  use  of,  in 
neutral  waters  or  on  high  seas, 
115-119,  121-125;  apparatus  of, 
on  board  the  Hainiun,  117;  in- 
vention of,  makes  it  harder  to 
control  war  correspondents,  122; 
station  at  Che-Foo,  122  n.,  266- 
267 ;  on  neutral  soil,  122-123 
and  n. ;  interference  with  mes- 
sages might  be  permitted,  123 ; 
seizure  and  confiscation  of  ap- 
paratus as  contraband,  123  and 
n. ;  proposal  to  exclude  vessels 
of  correspondents  from  zone  of 
warlike  operations,  123-124  n. ; 
proposal  to  prohibit  emission 
of  waves,  124  n. ;  rules  of  Insti- 
tute of  International  Law  on, 
135  n- 

Wirenius,  Admiral,  violates  neu- 
trality of  Egypt,  189;  stay  of, 
at  Jibutil,  189. 

Witte,  M.,  Russian  peace  plenipo- 
tentiary at  Portsmouth,  349  and 
n.,  350  n.,  352-353  and  n., 
354  n- 

Wounded,  the,  Russian  "Instruc- 
tions" on,  272-273;  treatment  of, 
276,  280-281,  284,  291  and  n.,  307 
n. ;  fired  upon,  305 ;  mutilation 
of,  308-309  and  n. ;  Japanese 
treatment  of,  319-322,  324;  Rus- 
sian treatment  of,  322  and  n. 

Yalu  River,  crossing  of,  by  Rus- 
sian troops,  34,  71  n. ;  timber 
concessions  to  Russia  on,  45; 
Russians  cut  timber  at,  51. 

Yamagata-Lobanoff  Protocol, 
terms  of,  45-46;  violation  of,  by 
Russia,  46-47. 

Yong-am-po,  34,  50,  51. 

Zone,  neutral  zone  in  Korea  pro- 
posed b}'  Russia,  56-59;  in  Man- 
churia proposed  by  Japan,  57; 
of  warlike  operations,  123  n., 
124  n,  131. 


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